1. The following issues were identified at the preliminary conference and confirmed at the arbitration hearing:

(a) the identity of the contracting party with the applicant;

(b) whether the applicant was a worker/deemed worker;

(c) section 20 principal;

(d) injury;

(e) effects of injury;

(f) pre-injury average weekly earnings (PIAWE), and

(g) capacity.

1. The issues were confined at the hearing and in subsequent written submissions. The confinement of the issues is discussed below.
2. The application against the third respondent had been previously discontinued as that company was not in existence at the time of the injury.[1]
3. The following documents were admitted as evidence:

(a) Application to Resolve a Dispute and attachments (483 pages);

(b) Reply of first respondent and attachments (index only);

(c) Reply of second respondent and attachments (index only);

(d) Reply of fourth respondent and attachments (10 pages);

(e) Reply of fifth respondent and attachment (19 pages);

(f) Reply of sixth respondent and attachments (19 pages);

(g) Applicant's late Application (20 pages), and

(h) Sixth respondent's late Application (377 pages).

1. The applicant subsequently filed with leave, the building plans for the building site and the associated text message which showed the fourth respondent forwarded the building plans to the applicant on 22 September 2023.

1. The matter was heard on 29 May 2025 when Mr Davidson SC appeared for the applicant and Mr Stiles of counsel appeared for the first, second and sixth respondents. Mr Robin, who is not admitted as a legal practitioner was granted to leave to appear on behalf of the fourth and fifth respondents. There was no objection by the other parties to Mr Robin appearing and making submissions and assisting the fourth and fifth respondents. Mr Robin both assisted and ably represented the interests of the fourth and fifth respondents.
2. The parties were advised that only evidence the subject of submission would be considered. There was no objection to this course.
3. The fourth and fifth respondents gave oral evidence which is referenced later in these Reasons.
4. The applicant provided written submissions at the outset of the hearing. Mr Stiles was granted leave to file written submissions in response to the calculation of PIAWE. Accordingly, following the conclusion of oral submissions, a timetable was set for the parties to file written submissions on that issue.
5. Notices for production were previously served by the applicant on the first and second respondents in accordance with the direction dated 23 April 2025.[2] There was no compliance by the first and/or second respondents with these notices. The non-compliance by the first respondent was not raised as an issue. The relevance of the second respondent's non-compliance is discussed later in these reasons.

1. It is common ground that the first respondent was the head contractor for the construction of a residential home at 21 Mimosa Street, Oatley (the building site).[3] The construction was a two-storey dwelling and semi underground garage.[4]
2. The uncontradicted evidence from the director of the first respondent,[5] which is accepted, is that the first respondent contracted with the second respondent to undertake the bricklayer work at the building site. The second respondent was required to provide all necessary skilled labour to complete the bricklaying work and engage any relevant sub-contractors.[6]
3. There was no contract between the first respondent and the applicant.
4. The fifth respondent was employed by the second respondent. His duties included supervising bricklayers at various building sites including at the building site.

1. The applicant did not pursue an allegation that he contracted with the first respondent.
2. It was agreed that the first respondent engaged the second respondent to undertake the bricklaying works at the building site.[7]
3. The first respondent engaged the second respondent to undertake the bricklayer work at the premises. Any contracts with bricklayers working at the building site came through the second respondent who was insured pursuant to the provisions of the 1987 Act.
4. The applicant otherwise conceded that there was no basis to find that the applicant was a worker or deemed worker of the first respondent. Accordingly, there is no basis to establish liability against the first respondent as either the employer/deemed employer of the applicant or as the s 20 principal.
5. There is an order in favour of the first respondent.

1. The applicant provided a statement dated 11 September 2024.[8] He obtained a certificate three in bricklaying and building and construction and worked in Australia as a bricklayer. He last worked on 30 September 2023 and had been receiving jobseeker payments.
2. The applicant said that since March 2023 he had worked on eight different jobsites under the direction of the fourth and fifth respondents. He also listed 27 other addresses where he worked with the second respondent through the fourth and fifth respondents. He said that he worked approximately 48 hours per week over six days, and that the fourth respondent had set the rate of pay to be $50 per hour.
3. The applicant referred to the injury on 30 September 2023 when he was directed by the fifth respondent to work on scaffold and was required to lift heavy wooden planks to build the scaffold floor. He had lifted approximately three or four planks, one at a time. When he picked up the fourth plank he felt a sharp pain in his left back. The scaffolding was about

1.6m high. He had to get down and jump onto a pallet of bricks to get some more bricks. He jumped and slipped to the ground and felt worst pain in his left back and could not work after this. 4. The applicant stated that he was paid weekly by cash but then was paid by direct deposit into his bank account. The last payment was for in the sum of $2,000 on 28 September 2024 made by the fourth respondent into his bank account. 5. The applicant said that the fourth and fifth respondents provided the equipment and materials, he was not given a pay slip, was not paid superannuation, and he did not sign a contract or provide any forms. The applicant stated that he reported to the fifth respondent, was not provided any training and was not inducted at any jobsites. 6. The applicant said he has not been able to return to work because of his injury and cannot sit for a long time. He is supported by his family and is receiving jobseeker payments. 7. The applicant provided a detailed statement dated 22 November 2024.[9] This statement is briefly summarised. The applicant stated that he had no prior injuries, had qualifications and previous work in bricklaying including with Kemstruct Builders up to 21 March 2023. From

10 March 2023 to 30 September 2023 the applicant was hired by and worked for the fourth and fifth respondents performing bricklaying and associated works. He said that during this period "I was always only paid and received instructions from Oguz and Volkan Yilmaz."[10] 8. The applicant's brother also worked for the fourth and fifth respondents. 9. During the 2022/23 financial year the applicant was paid $20,400 cash by the fourth and fifth respondents in addition to work previously with Kemstruct. Since 25 March 2023 the applicant worked at eight different jobsites under the direction of the fourth and fifth respondents. 10. The applicant was usually contacted by the fifth respondent about work although the fourth respondent did so occasionally. The fourth respondent set the rate of pay at $50 per hour. 11. The applicant asserted that he was required to work exclusively for the fourth and fifth respondents and was not required to take out or provide any form of insurance. He wore ordinary clothes whilst working. 12. The applicant was normally paid in cash but occasionally by electronic funds transfer. As evidenced by banking records, the fourth respondent transferred $2,000 to the applicant on 28 September 2023[11] and $1,200 on 21 September 2023.[12] 13. The applicant referred to text messages sent by the fifth respondent for work at various sites. They were:

(a) 11 March 2023 at Addison Rd, Marrickville;[13]

(b) 11 March 2023 at Bottlebrush Drive, Cranebrook;[14]

(c) 17 March 2023 at Calbina Rd, Northbridge;[15]

(d) 21 March 2023 at Ramsay Road, Five Dock;[16]

(e) 23 March 2023 at Wilson Parade, Heathcote;[17]

(f) 26 March 2023 at Heathcote;[18]

(g) 30 March 2023 at Wilbung Rd, Illawong (from fourth respondent);

(h) 11 April 2023 at Austral Street, Penshurst;[19]

(i) 12 April 2023 at Heathcote;[20]

(j) 18 April 2023 at Glencoe Street, Sutherland;[21]

(k) 19 April 2023 at Jacaranda Drive, Georges Hall;[22]

(l) 20 April 2023 at Penshurst (both fourth and fifth respondents);[23]

(m) 23 April 2023 at Wandoo Ave, Ryde (from fourth respondent);

(n) 28 April 2023 at Illawong (from fourth respondent);

(o) 5 May 2023 at Illawong;[24]

(p) 7 May 2023 at Illawong;[25]

(q) 11 May 2023 at Ryde;[26]

(r) 13 May 2023 at Bellevue Hill (fourth respondent);

(s) 15 May 2023 at Northbridge;[27]

(t) 17 May 2023 at Northbridge;[28]

(u) 18 May 2023 at Malabar;[29]

(v) 24 May 2023 at Arndell Park;[30]

(w) 25 May 2023 at Maroubra;[31]

(x) 28 May 2023 at Penshurst;[32]

(y) 1 and 4 June 2023 at Arndell Park;[33]

(z) 5 June 2023 at Sutherland;[34]

(aa) 6 June 2023 at Yennora and bring the hardhat;[35]

(bb) 7 June 2023 at Sutherland;[36]

(cc) 8 June 2023 at Marrickville;[37]

(dd) 9 June 2023 at Picnic Point;[38]

(ee) 12 June 2023 at St Mary's;[39]

(ff) 16 June 2023 at Prestons;

(gg) 18 June 2023 at Northbridge;

(hh) 20 June 2023 at St Marys;

(ii) 21 June 2023 at Sutherland;[40]

(jj) 25 June 2023 at Arndell Park;[41]

(kk) 26 June 2023 at Sutherland;[42]

(ll) 28 June 2023 at Malabar;[43]

(mm) 29 June 2023 at Penshurst;[44]

(nn) 5 July 2023 at Kingsford;[45]

(oo) 19 July 2023 at Penshurst for multiple dates;[46]

(pp) 26 and 27 July 2023 at Penshurst with a comment "please finish it tomorrow";[47]

(qq) 30 July 2023 at Sutherland for two days, and

(rr) 7 August 2023 at Miranda for three days.[48]

1. The fifth respondent directed the applicant to the building site on 24 July 2023. The applicant replied "Tomorrow I can't come. I have appointments."[49]
2. On 8 August 2023 the applicant and his brother commenced working for "Plumb Wall" daily until 5 September 2023.[50]
3. The applicant referred to a text message that was sent by the fourth respondent relating to the underpayment of $90 for "workers wages".[51] Given that no witness admitted that any of the parties were workers I tend to agree with the statement evidence from the fourth and fifth respondents that this is a reference to other workers. I do not rely on this evidence in support of the applicant's claim although, at the end of the day, it is of minor significance and has no impact on the ultimate findings.
4. The applicant stated that from 6 September 2023 the applicant and his brother only worked for the fourth and fifth respondents. The following text messages are relevant for this period:

(a) 6 September 2023 at Kingsford;[52]

(b) 7, 8, 10, 11, 12 September 2023 at Lindfield; [53]

(c) 12 September 2023 at Gledswood Hills;[54]

(d) 18 September 2023 at the building site (Oatley) for 19, 21, 22, 24 and 26 September 2023;[55]

(e) 19 September 2023 at Birchgrove,[56] and

(f) 27 September 2023 at Chatswood.[57]

1. Text messages were sent by the fifth respondent to the applicant on 18 September 2023 to attend the building site.[58]
2. The fifth respondent then requested the applicant's ABN and bank details[59] and requested these again on 28 September 2023. [60] Payments were made by the fourth respondent into the applicant's account on 21 (8.46pm) and 28 September 2023 at 5.00pm.[61]
3. On 22 September 2023 the fourth respondent sent the applicant building plans for the budling site.[62]
4. The applicant stated that he was lifting an A-Frame at the building site when he fell a sharp pain in his back. His brother was working nearby. The applicant continued to work thinking the pain would go away. The applicant jumped down and slipped on some bricks falling on the left side of his back and felt severe pain in his back. He attempted but could not complete his normal tasks after a rest break of 15 minutes. He reported the incident to the fifth respondent who advised him to leave and take the rest of the day off.
5. The applicant attended Dr Saleem at the Merrylands Medical and Dental Centre on

2 October 2023. On 3 October 2023 the applicant underwent a CT scan and an MRI scan on 19 October 2023. 6. On 23 October 2023 the applicant had a cortisone injection performed by Dr Saleem. 7. In response to the fourth respondent's statement, the applicant stated that he had not worked for his company (Perfect Masonry Pty Ltd) since 5 August 2023.[63] He said he was under the control of the fifth respondent who regularly provided tools and equipment. The applicant asserted that he was directed to work by the fourth and fifth respondents who had ultimate control of his work and was subject to their order and directions. 8. The applicant stated that he had ongoing back pain and could no longer undertake his pre-injury duties. He stated that he has not worked since the accident although he has been paid after the accident for jobs that had been previously undertaken.

1. The applicant provided a further statement dated 6 May 2025.[64]
2. The applicant denied having any back problems prior to the accident and referred to his medical records.
3. The applicant stated that the request to bring a brick saw and a wheelbarrow occurred on one occasion and was an outlier.
4. The applicant otherwise generally refuted the evidence of the fourth and fifth respondents.

1. The applicant's brother (Medhi) provided a statement dated 8 October 2024.[65] He also worked at Kemstruct Builders until March 2023 and met the fifth respondent during that period.
2. Medhi stated that from 24 March 2023 to 30 September 2023 he was hired by the fourth and fifth respondents as a full-time bricklayer working approximately 48 hours per week doing bricklaying and associated works. For most of the time he worked at the same sites as his brother, they lived at the same address, and it was easy to travel to work together.
3. After the applicant's injury on 30 September 2023, Medhi stated that he did not receive further text messages referencing future jobs from either the fourth or fifth respondent.
4. Medhi was paid $50 per hour, paid as he worked, was usually advised the day before where he would be working. Medhi has his own ABN and provided that to the fourth and fifth respondents. He was mostly paid cash in hand. He stated he had an obligation to work for the fourth and fifth respondents exclusively and they provided the materials, tools and plans at every worksite.
5. Medhi stated that he never advertised for work, the work was not incidental to any trade or business he performed, and he did not subcontract any of the work. He stated that he obtained "no goodwill from the performance of the work and that there was a high level of control over the way his employment was conducted by the fourth and fifth respondents such as the hours worked and the supply of equipment". Any questions arising out of the work were directed to either the fourth or fifth respondents.
6. Medhi stated that on 29 September 2023 he received a text from the fifth respondent to work at the building site. He drove to the building site on 30 September with his brother and was shown by the fifth respondent at the building site what work needed to be completed that day.
7. Medhi was advised by his brother that he had hurt his back lifting heavy timber but continued to work. Sometime later the applicant jumped to the ground, slipped on a broken brick and landed on the left side of his back. The applicant remained on the ground for two to three minutes due to pain, tried to do some work but could not.
8. The incident was reported to the fifth respondent who was supervising on the building site, and he told the applicant to leave.
9. Medhi was paid by the fourth respondent through his ABN for the work completed at the building site.

1. Mr Nathan Nader is the director of the first respondent and provided a statement dated

22 May 2025.[66] The first respondent was the licensed builder, owner and developer of the building site. 2. Mr Nader stated that the first respondent engaged the second respondent to act as the brickwork managers at the building site. Mr Nader stated:

"The terms of the contract were that they [second respondent] would hire skilled workers upon whatever terms they agreed upon and they would ensure that the workers compensation coverage of the workers would be covered by either Matzo Co Pty Ltd or by the subcontractors themselves.

It is my understanding that Mr Hadi Jafari was a bricklayer working on site employed by either Matzco or by Mr Iljaz working as a subcontractor for him, whereby he would cover his own workers compensation requirements."

1. Mr Nader stated that the first respondent paid the second respondent directly and the payments did not specify any amounts for any particular workers.

1. The fourth respondent provided a statement dated 30 March 2025.[67] He stated that he knew the applicant as a sole trader bricklayer who performed work "just like myself".
2. The fourth respondent stated that he did not work in any capacity from 28 June 2023 to

13 September 2023 and during the six-month period to 30 September 2023 had "no business connection" with Volkan. 3. The fourth respondent performed work for the applicant's company as a contractor and during the period let him know about work sites where contract work was available. This was common in the industry were contractors help each other out with work. He did not require the applicant or his brother to attend or perform work and they were free to take or leave any job that they were informed about. 4. The fourth respondent's brother (fifth respondent) was an employee of the second respondent. 5. On occasions contractors will borrow tools from each other. At one time he borrowed and returned the applicant's wheelbarrow. The applicant's 2023 and 2024 taxation returns show that the applicant spent money on tools and protective clothing. A photograph of the applicant's house shows other bricklaying equipment. 6. The fourth respondent denied setting a wage of $50 per hour for the applicant which was well above the award rate which was $31 per hour for full-time bricklayer and $37 per hour for a casual. 7. The applicant's company contracted him and others to perform work for a job the applicant had found for his company during the six-month period. At one point the applicant paid the fourth respondent $5,890 which related to a job organised by the applicant through his company. The fourth respondent referred to page 94 of the Application and "24" of the applicant's statement. This work was undertaken in mid-July. 8. There was no obligation for the applicant to work for him or the fifth respondent. He referred to the job undertaken by the applicant's company for "Plumb Wall Pty Ltd". Furthermore, the jobs the fourth or fifth respondent referred to the applicant were not "long timeframe" jobs and generally lasted for several days only at each location. 9. The fourth respondent, referring to [39] of the applicant's statement, did not recall why he was giving money to the applicant and said it was not clear from the text message.[68] 10. The fourth respondent had no interaction with the applicant between mid-June until well into September. He said it was difficult to say how he had any control of or influencing the applicant's work movements during the six-month period. He was not present on the day the applicant was allegedly injured. 11. The fourth respondent asserted that the text messages in the Application are "cherry-picked to create a particular image of the relationship" between the applicant, fourth respondent and fifth respondent as sections of the text messages are missing. 12. Photographs attached to the fourth respondent's statement shows bricklaying equipment at the applicant's home.[69]

1. The fourth respondent gave oral evidence that he was overseas from 28 June to

10 August 2023 and was hospitalised for a kidney operation in August 2023. The fourth respondent was in hospital for three days and returned for one day at a different hospital two weeks later. 2. The fourth respondent was shown a picture of the applicant's residence and identified a wheelbarrow, mud board, water container and a brick elevator. The brick elevator carries bricks from one floor to another. 3. The fourth respondent stated that he was the sole director of Vortex Masonry Pty Ltd (Vortex) which was incorporated on 16 October 2023. That company obtained workers compensation insurance about five or six months later when it started getting work. He did not know whether the second respondent had workers compensation insurance. 4. The fourth respondent said he did not work at the building site. He knew that this brother (fifth respondent) was a full-time employee of the second respondent. He performed work at building sites where the second respondent did the bricklaying, maybe two or three times a month. 5. The fourth respondent said his brother gave him the applicant's bank details and that was the return of an overpayment that "I had to pay him". He denied making cash payments to the applicant. 6. The fourth respondent worked with the applicant on building sites and his brother "at times". He worked with the applicant, the applicant's brother and the fifth respondent but not all together. He worked separately with the applicant and the fifth respondent. 7. The fourth respondent admitting sending a WhatsApp message to the applicant of the building plans at the building site. The applicant requested the plans, and he did not remember who gave him the plans. The plans included everything for the building site such as slabs and gardening and not just the bricklaying.

1. The fifth respondent provided a statement dated 30 March 2025.[70] He stated that he was an employee of the second respondent since 1 April 2023 and met the applicant in 2021. At that time, they both worked for Kemstruct Builders up until 10 February 2023.
2. Throughout his employment with the second respondent, the fifth respondent stated that he had "knowledge of where there was contract work available, and I would share this information with Hadi and other contractors I knew".
3. The applicant had a company called Perfect Masonry Pty ltd and he assumed this entity was for contract work. On 21 September 2023 he asked the applicant for his ABN and bank details, but he was "not able to recall the reason" and believe it was to "provide to someone else".
4. In relation to the applicant's alleged injury the fifth respondent was "not able to recall anything like that described by the applicant in his statement and only became aware of the issue when the applicant randomly messaged him on 12 October 2024".
5. The fifth respondent said the messages had been "carefully selected to suggest" that he had control over the applicant's work.
6. The fifth respondent included text messages which show:

(a) the applicant reached out for work;

(b) the applicant advised that his brother was coming showing absence of control by the fifth respondent;[71]

(c) discussions about rain interrupting the opportunity to work and the fourth respondent telling the applicant it was a matter for him whether he attended work or not because of the rain;

(d) the fifth respondent telling the applicant that he would need a brick saw for a particular job;[72]

(e) the fifth respondent telling the applicant that he can bring his brother "if you feel like needing him";[73]

(f) the applicant asking the fifth respondent if he knew of any labourers who could help out with the job for "Perfect Masonry Pty Ltd" and requesting details of the fourth respondent's ABN on account number for payment of this job;[74]

(g) the fifth respondent had a discussion with the applicant about his opinion about a labourer that he had referred;[75]

(h) the fifth respondent advised the applicant about another job with other people he knew and it was up to the applicant and his brother whether they took the job,[76]and

(i) the worksheet where the fifth respondent assisted the applicant with calculation was in relation to the job for the applicant's company which referred to worker's wages and were not a reference to the applicant.[77]

1. The fifth respondent gave oral evidence that he knew the building site because his employer was doing building works. He stated that he went to the building site where there was bricklaying work, but he did not know if the second respondent was doing bricklaying work at the building site.
2. The fifth respondent was a full-time employee of the second respondent from 1 April 2023 and worked on various building sites including the building site. He met Mr Nader from the first respondent at the building site.
3. The fifth respondent denied that it one of his work tasks to find suitable people to work at various sites for the second respondent. His tasks for the second respondent was to do "whatever they asked to me to do or wherever they ask me to go". He used to travel and determine the "state of work" and "what is required" and provide that information to the second respondent.
4. The fifth respondent did bricklaying work. He was not sure if they had employees and did not know who did the work for the second respondent. He saw bricklaying work being done on behalf of the second respondent. When asked who they were he said they were bricklayers, did not know relationships and there were no regular bricklayers doing work for the second respondent.
5. The fifth respondent met the applicant and did not know if he did bricklaying work at the second respondent sites and stated "he might have" but he didn't remember.
6. The fifth respondent stated that he assisted some people by referring them to work sites where he knew there was work. The applicant reached out for work, but he did not recall referring the applicant to work.
7. The fifth respondent said that if he did refer the applicant to a site he did not know on whose behalf. There were subcontractors already on site and the work was for one of the subcontractors. He did not remember who the subcontractors were.
8. The fifth respondent said that if he referred the applicant to a site then he did not remember offering him a job. If he sent him text of job, then he could "go and check it out". The applicant could go and talk to people at the site.
9. The fifth respondent said that he was not in charge at the building site on behalf of second respondent and there was no one above him at any building site and we were "all kind of equal".
10. The fifth respondent was asked if the second respondent was doing bricklaying work who would the applicant speak to. The fifth respondent said it was not him and the applicant would speak to other subcontractors or someone from the second respondent or "Nathan" (from the first respondent).
11. The fifth respondent said that the fourth respondent knew the applicant on a previous building suite and was introduced by him.
12. In August through to September 2023 the fifth respondent did not remember working with the applicant.
13. The fifth respondent was asked about the request by him of the applicant for the applicant's bank details. He said that his brother worked for "them" and they paid his brother extra which had to be returned. The fifth respondent initially said that his brother was in Turkey and his brother wanted the fifth respondent to return the money. When questioned that his brother was not in Turkey at the time of the text message, the fifth respondent said that there was a misunderstanding. He stated that he messaged the applicant for his bank details and was messaged back and possibly passed these details onto the fourth respondent.
14. The fifth respondent denied paying the applicant in cash and then stated that this may have occurred once "maybe".
15. The fifth respondent denied that the applicant did considerable work at building sites where the second respondent did bricklaying. He said that he was not at a particular building site every day, sometimes went for an hour, once or twice a week. The work at the building site had been going for three or four months prior to September 2023.
16. The fifth respondent did not remember seeing the applicant at the building site. When questioned about whether he remembered the applicant being injured on 30 September 2023 the fifth respondent said he did not remember that and did not remember being there.
17. The fifth respondent agreed that over several months he and the applicant exchanged a large number of text messages. When it was suggested that the text messages indicated to the applicant where he was to work the next day, the fifth respondent said it was not exactly like that, "I'm talking about other sub-contractors - I use to pass them on".
18. The text message on 18 September 2023 at 9.52pm was read out. The fifth respondent stated words to the effect that "I was pass on these messages as to where to work - accept these messages - not sure if he worked there - I wasn't there".
19. It was suggested to the fifth respondent that he would send the applicant to other building sites where the second respondent was doing bricklaying work, to which he replied he "didn't recall". The fifth respondent was asked about the Chatswood site to which the fifth respondent said he did not remember whether the second respondent did bricklaying work at that site.
20. The respondent was asked about text messages and bank records which suggested payment for work. He replied that he was doing others a favour and the payments were not for himself as he was doing a favour.
21. The fifth respondent was asked questions by Mr Stiles.
22. The fifth respondent replied that he was a bricklayer employed by the second respondent who helped with whatever they needed. He said that he answered to the two directors, Zafer and Berhan.[78]
23. The fifth respondent was asked did he recruit bricklayers on behalf of the second respondent to which he replied "no".
24. The fifth respondent replied that the people who engaged bricklayers were other subcontractors, he simply passed on the information and was just helping people. He did not remember ever seeing the applicant at any building sites where the second respondent was doing bricklaying work.
25. The fifth respondent said that he previously saw the applicant perform bricklaying work and he was a good bricklayer. He knew the applicant's brother (Medhi) but did not remember any texts. When asked about not sending texts to the applicant or his brother after 30 September 2023 the fifth respondent said that he did not remember.
26. In re-examination the fifth respondent confirmed that he was paid an annual salary of $55,000 with an hourly rate of approximately $30 per hour. He was contacted by people who asked for bricklayers, and he would inform about 5 to 10 people of where bricklaying jobs were available.
27. The fifth respondent was recalled and asked about the building plans for the building site sent by the fourth respondent to the applicant on 22 September 2023. He said he was not 100% sure, not certain, but he might have sent the plans to the fourth respondent so that he could see what type of work was required at the building site. He said he would send these types of plans to his brother "to get advice from him".

1. Yousef was named by the applicant as a witness to the injury.
2. An unsigned statement by "Yousef" dated 17 September 2024 says he does not remember where he worked on 30 September 2023, does not remember the building site and does not know the applicant "apart from working with him on one or two occasions".[79]
3. The statement, not adopted and vague in detail, does not assist in the determination of the issues.

1. The text messages have generally been referenced where they have been discussed by the relevant witness or in the findings.
2. The text messages concerning payments occurred on three separate occasions.
3. On 15 September 2023 the applicant sent a message to the fifth respondent that he would "come to collect money ,,, around 8 pm" to which the fifth respondent told him to "come abit earlier ... 7.30 ish".[80]
4. On 21 September 2023 at 5.41 pm the fifth respondent sent a message requesting the applicant's bank details and ABN number.[81] Funds ($1,200) were deposited later that evening by the fourth respondent.[82] A further request for this information was sent on or about 27 September 2023[83] and funds were deposited by the fourth respondent into the applicant's accounts on 28 September 2023 ($2,000).
5. On 22 September 2023 the fourth respondent sent the applicant the building plans for the building site.[84]

1. The claim form dated 6 November 2023 refers to the low back injury on 30 September 2023 at the building site and nominates "Oguz Yilma 'Vortex Masonry Pty Ltd'" as the name of employer responsible for this workplace and the person paying wages.[85] This claim form nominates the applicant's brother, the fifth respondent and "Yousuf" as witnesses to the event.
2. The second claim form dated 3 May 2024 nominates "Patrick Rosebery Constructions Pty Ltd through Oguz Yilmaz and Volkan Yilmaz" as the name of the organisation paying wages.[86]
3. The third claim form dated 28 August 2024 nominates "MatzoCo Construction through Oguz Yilmaz" as the name of the organisation paying wages.[87]
4. Mr Stiles submitted that the claim forms show that there was "no clarity by the applicant as to who is says is the alleged employer" and it has "changed along the way".

Summary of work prepared by the applicant from March 2023 to 30 September 2023

1. There is a detailed summary of work performed by the applicant from 11 March 2023 until

30 September 2023.[88] A summary of the work shows the following:

(a) the applicant worked at various sites organised by the fourth and fifth respondents from 11 March 2023 to 30 June 2023;

(b) the applicant worked sporadically (nine days) organised by the fourth and fifth respondents from 6 July 2023 to 1 August 2023;

(c) the applicant worked exclusively for Plumb Wall Pty Ltd from 8 August 2023 to

6 September 2023;

(d) the applicant (through his company) worked at Rouse Hill for "Decent Homes" for 22 days from 27 May 2023 to 5 August 2023, and

(e) the applicant worked exclusively for the fourth and fifth respondents from

7 September 2023 to 30 September 2023 (15 days). This included work at the building site on 19, 22, 25, 26 and 30 September 2023.

1. At all relevant times the applicant was the sole director of "Perfect Masonry Pty Ltd".[89]

1. An undated letter from an accountant noted that it prepared the 2023 tax returns for Perfect Masonry Pty Ltd and the amended return for the applicant. It noted that the applicant earnt director wages of $26,574 from Perfect Masonry Pty Ltd in the 2022/23 financial year. The amended individual tax return for 2023 showed income of $49,125 from Kemstruct Builders and the amount of $20,400.[90]
2. The accountant noted that in the 2023/24 financial year the claimant received $1,896 as a director of Perfect Masonry Pty Ltd and the individual return showed a total income of $19,450 comprising $9,250 from the fourth and fifth respondents and $10,250 from Plumb Wall Pty Ltd.
3. The applicant's individual 2023 return showed that he operated as a bricklayer was paid wages of $26,574 by "Perfect Masonry Pty Ltd" and income as a sole trader. Expenses were deducted which included fuel, repairs, tools, clothing, and materials and supplies.[91]
4. The individual 2024 return showed income from Perfect Masonry Pty Ltd of $1,896, jobseeker payment of $11,701 and $19,450 as a sole trader operating as a bricklayer. The expenses were approximately $5,000 comprised of fuel, repairs, tools and materials.[92]
5. The 2023 company taxation return for Perfect Masonry Pty Ltd described the work as "brick laying services" with income of $42,273 and expenses including cost of sales ($7,632), contractor/sub-contractor/commission expenses ($1,140) and superannuation expenses ($2,790).[93] Wages expenses were listed at $26,576.
6. The 2024 company taxation return showed income of $33,076 and expenses including cost of sales ($5,909), contractor/sub-contractor/commission expenses ($12,690) and superannuation expenses ($209).[94] Wages expenses were listed at $1,896 which is the figure listed by the applicant in his personal taxation return.
7. The company profit and loss statements were consistent with the other records.

1. The bank records of Perfect Masonry Pty Ltd for the period from February 2023 to

28 August 2023 show payments from entities other than those named in these proceedings. The last payment was from Decent Homes on 28 August 2023.[95] 2. The applicant's bank records from January 2023 to March 2023 show regular payments from Kemstruct Builders.[96] In August 2023 to 8 September 2023 there are a series of payments from Plumb Wall Pty Ltd.[97] 3. The bank records show the two payments from the fourth respondent to the applicant on 21 and 28 September 2023.[98]

1. The applicant attended Dr Muhammad Saleem, general practitioner (GP) on 3 October 2023. The certificate of capacity dated 30 October 2023 notes the first attendance at the practice on 3 October 2023 and referred to a "fall from height and lifting scaffolding at work" causing left L5 nerve root impingement.[99] The applicant was then certified with no current work capacity.
2. The CT scan dated 3 October 2023 noted a clinical history of low back pain after fall from .5m height with pain radiating to the left thigh.[100]
3. The MRI scan dated 19 October 2023 noted a clinical history of lower back pain radiating to the left leg with tingling/numbness. The scan showed impingement of the traversing left L5 nerve root.[101]
4. On 16 January 2024 the GP referred the applicant to Dr Dexter for opinion in relation to a work-related injury causing back pain radiating to left leg with the MRI scan showing left L5 nerve compression.[102]
5. On 23 May 2024 Dr Kim, neurosurgeon, provided a diagnosis of left L5 radiculopathy following work injury. The doctor noted that the applicant was a healthy 27-year-old bricklayer who sustained injury while lifting bricks and scaffolding. The doctor recommended physiotherapy and opined that the applicant may be a good candidate for left-sided L4/5 microdiscectomy.[103]
6. In May 2024 the applicant commenced physiotherapy for ongoing lower back pain.[104]
7. Various certificates of capacity dated 16 January 2024, 6 May 2024, 3 October 2024,

11 November 2024 and 1 May 2025 certified the applicant as having no current work capacity.[105] A Centrelink medical certificate dated 1 May 2025 also certified the applicant as being unfit for work/study.[106]

1. The Commission is required to provide a "brief statement" of reasons: s 294(2) of the 1998 Act.
2. The applicant bears the onus of proof on the balance of probabilities on all issues.[107]

1. The fifth respondent was an unsatisfactory witness who was prepared to give evidence that he thought could assist his case. He was asked straight forward questions and failed to provide direct answers and often provided unclear and meaningless answers to questions.
2. Examples of the vague nature of the fifth respondent's oral evidence included:

(a) asked to identify bricklayers subcontracting to the second respondent and could not name them, [91];

(b) did not remember who did work for the second respondent [91];

(c) did not know on whose behalf he referred the applicant to work sites [94];

(d) did not know who was in charge at the building site for the second respondent [96];

(e) could not identify who the applicant would speak to at the building site and referred to unknown contractors [97];

(f) did not recall sites whether the second respondent worked at the Chatswood site [106], and

(g) could not explain why the work stopped for the applicant and his brother (Medhi) after 30 September 2023 [112].

1. Other than the evasive nature of the fifth respondent's answers, I formed the view that his answers to various questions were false. The fifth respondent stated that he did not recall seeing the applicant at a building site where bricklaying work was undertaken by the second respondent.[108] This answer is inconsistent with the text messages.
2. The text messages show that the fifth respondent directed the applicant to work at various building sites including the building site. The suggestion by the fifth respondent that he never saw the applicant at a relevant building site is implausible considering the text messages and otherwise contradicted by the applicant and the applicant's brother.
3. The fourth and fifth respondents asserted in their statement evidence that the text messages relied upon by the applicant were taken out of context. Their evidence did not explain the correct context of the text messages.
4. The fifth respondent suggested that the text messages were "carefully selected". I reject that explanation. It is an example of the type of assertion made by the fifth respondent that is without substance.
5. It is obvious that the text messages, principally sent by the fifth respondent, and on occasions by the fourth respondent, show that the applicant was directed to attend work at various building sites around Sydney. The terms of the text messages show clear direction where to go. As the applicant submitted, a specific text message from the fifth respondent on 27 September 2023 was "Hadi, you go to Oatley tomorrow."[109] There was no ambiguity in that message nor does it sit with the fifth respondent's oral evidence that the applicant was working for either unknown subcontractors at the building site or, as was suggested at one point, for the first respondent.
6. Another example is the direction by the fifth respondent for the applicant to attend the prison at Malabar on or about 18 May 2023 and 28 June 2023. It is a ridiculous suggestion that the applicant was to turn up at a prison and enter the site for the possibility of obtaining work for some unknown third party.
7. The suggestion that the applicant may have been working for the first respondent (described in evidence as Nathan who is the director of the first respondent) at the building site is implausible given the fact that the first respondent contracted with the second respondent to perform the bricklaying works. This is simply an example where the fifth respondent was prepared to say anything to deflect suggestion of liability on him or the second respondent by referencing Nathan as the person the applicant may have spoken to at the building site.
8. The fifth respondent also suggested that the applicant was working for other bricklaying subcontractors at the building site but could not name them. This evidence is implausible given the applicant never suggested he was paid by anyone for the work at the building site other than by the fourth or fifth respondents.
9. As noted earlier, the fifth respondent's evidence that he was simply passing on possible available work is inconsistent with the nature of the text messages.
10. The text messages are compelling evidence which were not properly explained by either the fourth or fifth respondents in their written and oral evidence. Indeed, the text evidence is so compelling that I consider the written and oral evidence given by the fourth and fifth respondents to be untrue.
11. I mention some examples where the texts show a direction by the fourth and/or fifth respondents for the applicant to attend various building sites. These text messages do not suggest (as the fourth and fifth respondents suggest) that work was potentially available and for the applicant to check it out himself.
12. The following messages were sent by the fifth respondent unless otherwise indicated:

17 May 2023 - Applicant: "Hey Volcan where we working"

18 May 2023 "Don't be late, try to come 10 mins earlier, I think zaf will be there too."

25 June 2023 "Hadi, 25 Holbeche Road, Arndell Park tomorrow"

1. On 28 June 2025 the fifth respondent advised the applicant of work the next day at Malabar prison with the following messages:

"Come 10-15 mins earlier, we will go inside of prison."

"Bring sandwiches or something you can eat quickly, we won't have lunch".

1. On 27 July 2023 the fifth respondent sent the following texts. These texts followed a text on 25 July 2023 when the fifth respondent sent the applicant to an address in Penshurst and on 26 July 2023 when he text "Same place tomorrow":

1. On 15 September 2023 there were texts concerning the applicant collecting money from the fifth respondent. They were:

Applicant "Hey Volcan I'll come to collect the money"

1. These messages contradict the fifth respondent's evidence that he did not pay the applicant although he accepted that it may have occurred on one occasion. The fact that the fifth respondent may have paid the applicant on one occasion contradicts the fifth respondent's evidence that he never engaged the applicant around that time.
2. On 18 September 2023 there were the following exchange of messages:

1. On 28 September 2023[110] the fifth respondent text the applicant as follows:

1. At one stage in his oral evidence the fifth respondent asserted that at the relevant time his brother (fourth respondent) was in Turkey explaining why the fifth respondent asked for the applicant's bank details when supposedly, on the fifth respondent's evidence, the fourth respondent wanted to return an overpayment. The applicant's counsel immediately put that this evidence was wrong. I formed the view that this evidence was intentional and wrong. It was not a mistake as it appeared an attempt by the fifth respondent to explain why he was requesting the details as opposed to the fourth respondent. When he was questioned about the inaccuracy in that evidence the fifth respondent then asserted that the evidence was a "misunderstanding". The fifth respondent never explained why he, as opposed to the fourth respondent, requested the applicant's bank details.
2. The fact that the fifth respondent was the person requesting bank details again showed that the applicant was doing work through the fifth respondent, and not, as the fifth respondent urged, as a means for assisting other contractors who required bricklayers.
3. The other implausibility is in respect of the request for bank records by the fifth respondent some one week after the earlier request. The second request shows that it is far more likely that this was a payment of work organised by the fifth respondent rather than the proffered explanation that this was another repayment of a previous overpayment.
4. Another basis for an adverse credit finding is that the fifth respondent in his statement evidence agreed that he asked the applicant for his ABN and bank details on

21 September 2023 but was "not able to recall the reason" and believed "it was to provide to someone else". He does not address the fact that he again asked for the details on

28 September 2023. In his oral evidence the fifth respondent gave the version that it was his brother who owed the applicant money. 5. In submissions Mr Robin referred to text messages included by the fifth respondent which contradicted the applicant's assertion of the level of control. However, those text messages show that the fifth respondent and the applicant were working together in July 2023,[111] something which the fifth respondent denied in his oral evidence. The relevant text message refers to "the place that where we work". 6. Mr Stiles submitted that the criticism expressed by the applicant's counsel of the fifth respondent's oral evidence was "somewhat harsh" and that he "withstood some questioning" and that some of the uncertainty of answers was due to the use of translator. Having listened again to the fifth respondent's answers which have been summarised earlier in these reasons, I maintain the view expressed during the hearing that the fifth respondent would say whatever he thought might assist his case and he was not a witness of truth. 7. Mr Stiles referred to and relied on the fifth respondent's evidence that he simply flicked around messages of potential work to people he knew. However, for the reasons discussed earlier, that evidence was contradicted by the terms of the messages sent by the fifth respondent to the applicant. Some examples, such as attending the Malabar prison to possibly obtain work is to so implausible that I have no hesitation in finding that the fifth respondent was untruthful in his evidence.

1. The fourth respondent sent various text messages to the applicant. The following texts were sent by the fourth respondent as examples directing the applicant to various sites:

1. The fourth respondent in his statement evidence said that he did not recall why he was giving money to the applicant and said it was not clear from the text message.[113] The oral evidence differed from this and was aligned with the version provided by the fifth respondent that he was returning an overpayment.[114] The fourth respondent did not attempt to explain why he sent the applicant a second payment a week later by direct bank transfer to the applicant.
2. Both the fourth or fifth respondent did not explain the supposed "overpayment" or the need to make a second payment. I consider that the oral evidence was false.
3. The written statement by the fourth respondent that there was no work association with the applicant for many months is contradicted by forwarding the building plans to the applicant on 22 September 2023. The fourth's respondent statement evidence[115] that he had no business connection with his brother up to 30 September 2023 was inconsistent with providing the building plans from his brother to the applicant.
4. The text messages in late September 2023 set above also contradict the fourth respondent's statement evidence that he had no business connection with the fifth respondent in September 2023.[116] The text message on 21 September 2023 direct the applicant to the building site. There is a further message on 29 September 2023 showing that someone (possibly the fifth respondent) was going to Oatley the following day.
5. The fourth respondent's statement also asserted that the text messages by the applicant in the application are, in his view, "cherry-picked to create a particular image of the relationship" between the applicant, fourth respondent and fifth respondent as sections of the text messages were missing. However, his evidence does not clarify the correct "particular image" of the text messages. The text messages clearly show the direction of work from either the fourth or fifth respondent to the applicant. This evidence is another example of the fourth respondent providing self-serving evidence which is inconsistent with the text messages and an explanation which is unsatisfactory.
6. Whilst the fourth respondent's oral evidence was not as evasive as that provided by the fifth respondent, I consider the fourth respondent's evidence explaining the two bank payments in September 2023 as dishonest. Other key portions of the fourth respondent's evidence is contradicted by the documentary evidence such as the text messages and the fact that the fourth respondent sent the building plans to the applicant.
7. The fourth respondent's evidence is treated with severe reservations unless corroborated by someone other than the fifth respondent.

1. The respondents attacked the applicant's credit based on two areas.
2. Then first was the inconsistencies with respect to the different employers named in the three claim forms which is addressed later in these reasons. For the reasons provided, I do not accept that this issue goes to credit as the uncertainty reflects the business arrangements and the legal difficulties in ascertaining the identity of the contracting party.
3. The respondents also referred to the inconsistency in the applicant's statement concerning the applicant's allegation that he worked exclusively for the fourth and fifth respondents for the six-month period prior to the injury. In careful submission Mr Stiles showed that this evidence was inconsistent with documentary evidence that showed the applicant working through his company and the work undertaken by the applicant with Plumb Wall.
4. As Mr Davidson SC explained, the applicant elsewhere in his statement evidence admitted and did not hide this work.[117] The statement evidence which suggested exclusively over six months was wrong. However, it was not in my view, deceitful because it was otherwise disclosed in the statement evidence.
5. Whilst I have generally accepted the applicant's evidence particularly with regard to the work in September 2023, I accept that his evidence must be scrutinised considering the documentary evidence which showed that at various times in 2023, the applicant was either operating a business through his company (Perfect Masonry) and/or engaged as sole trader with persons other than the fourth and fifth respondents.
6. This issue is discussed later when considering the characterisation of the applicant's engagement with the second respondent.

Relationship between fourth and fifth respondents

1. There are frequent text messages between the applicant and either the fourth respondent and/or fifth respondent showing an ongoing business relationship between these persons. I mention the following examples.
2. On 25 June 2023 the fifth respondent text the applicant telling him to be at Arndell Park tomorrow as "Oguz wants you to go there" and "Don't be late".[118]
3. On 13 September 2023 the fourth respondent directed the applicant to Lane Cove and the applicant's brother to Heathcote. These are places where the fifth respondent had previously directed the applicant to attend.
4. On 21 September 2023 the fourth respondent sent a text message to the applicant stating "Hadi U going tomorrow Oatley" and that "Mahdi coming with me brichgrove [sic]".[119]
5. On 21 and 28 September 2023 the fifth respondent requested the applicant's bank details. The fourth respondent then made payments into the applicant's bank account.
6. The fourth respondent sent the building plans of the building site to the applicant on

22 September 2023. His oral evidence was that he did not recall from whom he received the plans. 7. The fifth respondent gave oral evidence that he may sent the plans to the fourth respondent. These plans relate to the building site where the second respondent had the contract to perform the bricklaying work and the fifth respondent was an employee of the second respondent. 8. The likely inference based on these facts is that the plans were provided by the fifth respondent to the fourth respondent. The purpose of the provision of the plans was clear, that is, that the applicant was performing bricklaying work at the building site where the second respondent was the head bricklaying company and the applicant was required to understand the scope of the work. The applicant gave evidence that the plans were discussed with the fourth respondent. The fourth respondent had directed the applicant by text to the building site on 21 September 2023. 9. Mr Stiles submitted that the "fourth respondent is not an agent of anyone". 10. The non-compliance by the second respondent of the notice to produce was raised by the applicant. He sought a Jones v Dunkel inference due to the second respondent's non-compliance as a matter relating to the identification of the party contracting with the applicant. 11. No explanation was provided by the second respondent through its legal representatives explaining the non-compliance. 12. The relevant principles in relation to the drawing of a Jones v Dunkel inference were discussed by Roche DP in University of New South Wales v Brooks_[120]_ which adopted the discussion by the Court in Appeal in MSPR Pty Ltd v Advanced Braking Technology Ltd (MSPR).[121] 13. These principles include that the Jones v Dunkel inference permits the Court (or Tribunal) to make a finding unfavourable to the party with greater confidence.[122] The inference can only be drawn where there is evidence that there is required to be contradicted. 14. I agree with Mr Davidson's submission that the conduct by fourth respondent in paying money to the applicant by direct transfer, sending and explaining the building plans to the applicant[123] and directing the applicant to the building site show that these actions were undertaken for the benefit of the second respondent. 15. I accept that, particularly the second payment of $2,000 on 28 September 2023 made by the fourth respondent to the applicant was for work at the building site. The applicant had obviously performed work at the building site over several days in the previous week and this payment is likely to be for that work. 16. Otherwise, the various text messages from the fourth and fifth respondents show a close arrangement with respect to organising the applicant to work at sites where the second respondent was the brick laying contractor. Whilst the exact nature of the relationship is unclear, the essential three actions by the fourth respondent, that is payment to the applicant, provision of plans for the building site and directions to work all related to the fulfillment of the second respondent's contractual obligations as a brick laying contractor at the building site. 17. Based on these facts, I am satisfied that these actions by the fourth respondent were undertaken on behalf of the second respondent. 18. These actions by the fourth respondent are relied upon in relation to the issues of the identity of the contracting party and the characterisation of that relationship between the applicant and the second respondent.

Findings concerning the applicant's presence at building site and injury

1. Building plans for the building site were sent by the fourth respondent to the applicant on

22 September 2023. The building plans show a two-story dwelling with rendered brick. As found above, I infer that these plans were provided by the fifth respondent on behalf of the second respondent because the second respondent was contracted to undertake the bricklayer works at the premises and the fifth respondent was the employee of the second respondent. 2. There are text messages in September 2023 from either the fourth and/or fifth respondents directing the applicant to work at the building site. 3. The applicant gave evidence of the injury sustained at the building site on 30 September 2023. 4. The evidence of the applicant's brother corroborates the occurrence of the injury at the building site. 5. The fifth respondent denied that he knew of the injury. Coincidentally the fifth respondent never referred work to the applicant and the applicant's brother following the injury whilst he regularly referred work to the applicant and the applicant's brother prior to the date of the injury. Indeed, the fifth respondent accepted in his oral evidence that the applicant was a good bricklayer. However, the text messages from the fifth respondent of any potential work immediately ceased following the date of injury. 6. The likely inference is that the fifth respondent immediately stopped using the applicant's services when he knew there had been an injury. This issue was raised with the fifth respondent who avoided answering the question of the coincidence between the date of injury and the cessation of texts after 30 September 2023. 7. The applicant attended his general practitioner on 3 October 2023.[124] The applicant's statement was that it was 2 October 2023 although the first certificate of capacity nominates the date as 3 October 2023. Nothing turns upon this one-day difference. 8. The history recorded in the first certificate of capacity is consistent with the applicant's version of the mechanism of injury.[125] 9. The CT scan dated 3 October 2023 noted a clinical history of a fall from .5m, unable to walk without assistance and pain radiating to the left thigh. The scan suggested moderate right L5/S1 narrowing with the potential for impingement of the right L5 nerve root.[126] 10. The MRI scan dated 19 October 2023 noted a clinical history of lower back pain radiating into the left leg with tingling and numbness. The scan showed left lateral recess with impingement of the traversing left L5 nerve root.[127] 11. In May 2024 Dr Kim, neurosurgeon, noted pain and numbness in the L5 distribution. The doctor noted the MRI scan showed a left sided focal disc herniation causing L4/5 compression of the descending L5 nerve root caused by the September injury. Dr Kim recommended further physiotherapy and failing same, a left sided microdiscectomy.[128] 12. Subsequent certificates confirm that the applicant had no current work capacity. 13. The medical evidence is entirely consistent with the date and mechanism of injury. 14. The applicant has provided a consistent account of the nature and mechanism of the back injury which occurred at the building site. 15. Mr Stiles submitted that there was uncertainty as to the mechanism of the injury, referring to the absence of corroboration other than by the applicant's brother. The submission failed to consider the consistent account provided to medical practitioners following the injury. The submission failed to appreciate that there was no inconsistent account save as to the fifth respondent's version that he was not at the work site. 16. There is no legal principle that a party requires corroboration to satisfy the onus of proof. However, I again note that the text messages from the fifth respondent stopped after 30 September 2023. This silence suggests a sudden change to the arrangement where the fifth respondent was previously, almost daily, directing the applicant to various work sites. This change is consistent with something occurring on 30 September 2023. The fifth respondent avoided answering this question when asked about the absence of communication after 30 September 2023. 17. I reject the fifth respondent's evidence that he was not at the building site and did not witness the incident. 18. In my view considering the evidence of injury at the building site is overwhelming. The fifth respondent's denial that he was present is rejected given these matters and his lack of credibility. 19. For these reasons I am satisfied that the lifting and fall at work on 30 September 2023 caused disc injury and left L5 nerve compression.

Finding - The identification of the contracting party

1. The identification of the contracting party is distinct from the characterisation of the relationship between the parties.
2. The applicant described the fourth respondent's role as unclear submitting that he was clearly doing work with the fifth respondent. It submitted that it did not detract from the primary submission that the contract was between the applicant and the second respondent.
3. The Court of Appeal in Resilient Investment Group Pty Ltd v Barnet and Hodgkinson as Liquidators of Spitfire Corporation[129] noted the distinction between the identity of the contracting party and the characterisation of the relationship and confirmed that the principles in Pitcher v Langford and Shaw v Bindaree Beef Pty Ltd continued to apply. The Court held that it was necessary to consider the totality of the relationship when determining the identity of the contracting party.[130]
4. The decision of Resilient was brought to the parties' attention. The applicant adopted the application of the decision. The other parties made no relevant submission on the law with respect to the identification of the contracting party. The only contrary submission of fact on this issue is discussed below.
5. In Pitcher v Langford[131] the Court was required to determine which of two parties was the employer of the worker. There was no dispute that the worker was employed by one of the two parties. The worker was part of a gang of shearers initially in the employ of Pitcher. These workers would move from property to property for the purpose of shearing sheep. Approximately one week prior to being due to shear at the Langford property, there was discussions between Pitcher and Langford of a change in the arrangements to the engagement of the shearers. These discussions arose due to Pitcher receiving a recent increase of 28% in his workers compensation premium.
6. By reason of an agreement to the change in the arrangements, Langford took several steps. He advised his workers compensation insurer that he was employing the shearers; he paid the premium for the extra workers and paid money directly to the worker for his work. The final payment by way of cheque to the worker described him as his "employee".
7. The trial judge held that "nothing really changed" insofar as the employment arrangements concerned and held that, despite the change in the payment arrangements to the worker,

Pitcher remained the employer. Several factors indicated that the original employment arrangement between the worker and Pitcher continued, including the supply of rations and Langford's answers to a series of questions regarding Pitcher's right, to hire and fire the shearers. In these circumstances, Kirby P held that there was evidence upon which the trial judge could decide that Pitcher was the employer and no question of error of law by reason of lack of evidence arose.[132] 8. Priestley JA stated:[133]

"The trial judge's reasoning does not appear to have been based on the alterations in the arrangements for the August shearing being in fact shams, at least in the usual sense, for a description of which see Esanda Ltd v Burgess [1984] 2 NSWLR 139 at 153-154. Rather, his reasoning was on the basis that whatever the parties had agreed between themselves, as evidenced by various documents which came into existence, they in fact conducted themselves not pursuant to their agreement, but upon the basis of the arrangements in force upon earlier shearings. This kind of approach is sanctioned by such authoritative cases as R v Foster; Ex parte Commonwealth Life (Amalgamated Assurances) Ltd [1952] HCA 10; (1952) 85 CLR 138, especially at 151 and Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] SR (NSW) 260; 80 WN (NSW) 408."

1. During his reasons, Handley JA stated:[134]

"His Honour then noted (at 8) that here 'the question is by whom the person is employed, it not being disputed that he was a worker employed by either of them or perhaps by both' the owner and the contractors.

In my opinion the trial judge did not err in holding that the courts are entitled,

independently of any statutory power in that behalf, to consider the reality of purported contractual arrangements. No case was sought to be made at the trial that the written agreement between the owner and the worker was a sham: compare Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802 per Diplock LJ and Cam & Sons Pty Ltd v Sargent (1940) 14 ALJ 162. Furthermore no such case was sought to be made in this Court either. But independently of the sham principle the courts can consider what the parties to a contract have done, in order to see whether it has been ignored or abandoned.

In R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138, in a case where the prosecutor alleged that its insurance canvassers employed under a written agreement were independent contractors because the agreement so provided, Dixon, Fullagar and Kitto JJ said (at 151 and 155):

'... if in practice the company assumes the detailed direction and control of the agents in the daily performance of their work and the agents tacitly accept a position of subordination to authority and to orders and instructions as to the manner in which they carry out their duties, a clause designed to prevent the relation receiving the legal complexion which it truly deserves would be ineffectual ... The case for the respondent union simply is that [the agreement] does not represent the reality of the relation in practice of the agents and the prosecutor company ... [the evidence fails] to exclude to our satisfaction the possibility that the real relation between some or all of the agents and the prosecutor company in their actual work, week in week out, is in fact that of employer and employee, whatever the agreement may say.'

This decision was applied in Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] SR (NSW) 260; 80 WN (NSW) 408, in determining whether a deed of 'licence' between the parties prevented their relationship being that of landlord and tenant. Sugerman J said, quoting from earlier authority (at 269; 414): '... It is not necessary to go so far as to find the document a sham. It is simply a matter of finding the true relationship of the parties.'"

1. This passage was applied by Brereton J in Sturesteps v A G McGrath[135] and referred to by Katzmann J in Coghill v Indochine Resources Pty Ltd.[136]
2. Pitcher was considered by the Court of Appeal in Shaw v Bindaree Beef Pty Ltd.[137] In the course of his reasons Giles JA stated:[138]

"The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the 'reality of purported contractual arrangements' (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party."

1. Similar observations were made by Edmonds J in Gothard, in a matter of AFG Pty Limited

(in liq) v Davey[139] when his Honour stated:[140]

"Unsurprisingly, the outcome in cases which have been concerned with identifying an employer of a person or group of persons from two or more possibilities, whether from within the same group of companies or otherwise, has turned on their own facts and, in consequence, the case law in this area is of limited assistance. Nevertheless, it is possible to discern certain general principles that the courts have applied in the identification process. The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer."

1. The following evidence, which I accept, establishes that the applicant was working pursuant to a contract with the second respondent at the time of his injury.
2. The first respondent contracted with the second respondent to undertake the bricklayer work at the premises. The second respondent was required to provide all necessary skilled labour to complete the bricklaying work and engage any relevant sub-contractors.[141]
3. I am satisfied that the fifth respondent had actual authority to organise persons to perform bricklaying works at building sites where the second respondent was the contracting entity and, in particular, at the building site. The basis of the fifth respondent's actual authority are the following matters.
4. The fifth respondent was a full-time employee of the second respondent. He agreed that he did brick laying work and various unspecified tasks at building sites for the second respondent.
5. The fifth respondent, as the second respondent's employee, was present at the building site.
6. The fifth respondent sent the building plans of the building site to the applicant through the fourth respondent.
7. The fifth respondent sent text messages to the applicant directing him to work at the building site.
8. I accept the applicant and the applicant's brother's evidence that the fifth respondent was working with the applicant at the building site on the day of the injury.
9. I accept the applicant's evidence concerning direction provided by the fifth respondent to the applicant at the building site on the day of the injury.
10. I accept the applicant's evidence that the fifth respondent regularly paid him cash for his services. The applicant's evidence on this issue is corroborated by the text message dated 15 September 2023.
11. The applicant performed the work which the second respondent was required to undertake pursuant to its contractual obligation with the first respondent.
12. There were payment of monies to the applicant for work performed. There is evidence of direct bank payment by the fourth respondent following texts from the fifth respondent to the applicant requesting bank details in late September 2023. Given the recent work performed at the building site, it is likely that the second payment on 28 September 2023 represented, at least in part, work performed at the building site.
13. The applicant was performing bricklaying work for the benefit of the second respondent including at the building site. It is self-evident that he would be paid for this work, and these payments have been disclosed in his taxation returns.
14. Finally, I agree with his submission that the applicant's work enabled the second respondent to comply with its contractual obligations with the first respondent.
15. The fifth respondent stated that he had no authority to arrange persons to work as contractors at the building site implicating other unknown sub-contractors where it was unclear how those other sub-contractors were engaged. There is no evidence identifying these other sub-contractors either from the fifth respondent (who was asked to nominate them and avoided answering the question) or the applicant.
16. I note the submission on his behalf by Mr Robin which described the fifth respondent as an employee of the second respondent who was "vulnerable" and his evidence "may have been influenced by his relationship with his employer".
17. Another possibility, which is highly implausible, is that the applicant was working for some other person at the building site. He was not, as is common ground and consistent with the earlier findings, in any contractual arrangement with the first respondent. There is otherwise no evidence that he was engaged by some unknown sub-contractor working at the building site.
18. Mr Stiles otherwise referred to the inconsistent references by the applicant in the three claim forms concerning the identification of the party. However, the assertions in the claim forms are not entirely inconsistent with the legal conclusion on the identity of the contracting party.
19. The first claim form identifies the third and fourth respondents as the employers. The third respondent was not in existence at the time of the injury. The fourth respondent paid money to the applicant and the allegation that he was the contracting party is not inconsistent with the conclusion because the money was paid on behalf of the second respondent.
20. The second claim form refers to the first respondent and to the fourth and fifth respondents. The findings above (see paragraph [17]-[21]) show that the first respondent is not liable. To the extent that the applicant identified the fourth and fifth respondents, that allegation is consistent with the findings that their conduct, mostly undertaken by the fifth respondent, was on behalf of the second respondent.
21. The third claim form identifies the second respondent and the fourth respondent. This allegation is essentially consistent with these findings.
22. The claim forms may show uncertainty as to the identification of the contracting party. This is not unusual in cash building jobs and does not impact on the applicant's credibility or reliability.
23. The different assertions in the claims forms otherwise does not contradict the essential facts set out above.
24. Mr Stiles also submitted that the bank records showed no payment from the second and fifth respondents to the applicant and that this was significant in terms of the question of agency.
25. However, that submission ignores the fact that the applicant was performing regular bricklaying work at building sites for the benefit of the second respondent arranged by the fifth, and sometimes by the fourth respondent.
26. The absence of deposit into a bank (other than the two payments in late September 2023) is otherwise consistent with the applicant's account that he was regularly paid in cash by the fifth respondent. Mr Stiles' submission that there was no payments by the second/fifth respondents is inconsistent with the apparent acceptance that the applicant regularly performed bricklaying work at the various building sites where the second respondent was the brick laying contractor. If Mr Stiles did not accept the list of jobs undertaken at the second respondent sites,[142] then I otherwise accept the list drafted by the applicant as accurate and consistent with the text messages.
27. I reject the submission that the fifth respondent "never paid the applicant anything" and find that payments were regularly made in cash by the fifth respondent on behalf of the second respondent. The submission otherwise ignores the corroborative text messages between the fifth respondent and the applicant showing the arrangement to pay cash on 15 September 2023.
28. I have explained why I have rejected the fifth respondent's evidence unless it is independently corroborated by evidence other than from the fourth respondent.
29. For these reasons, I find that the fifth respondent had express authority to engage the applicant on behalf of the second respondent.
30. The applicant relied on the doctrine of undisclosed principal. The undisclosed principal can be sued on the contract made in the name of another person with his authority. The principal was discussed briefly in Resilient when Gleeson JA noted that the doctrine is well-established referencing the decision of Lord Lindley in Keighey, Maxstead & Co v Durant[143] when his Lordship stated:

"The explanation of the doctrine that an undisclosed principal can sue and be sued on a contract made in the name of another person with his authority is, that the contract is in truth, although not in form, that of the undisclosed principal himself."

1. I accept that the second respondent is the principle bound by the acts of the fifth respondent.
2. I infer that the actions by the fourth respondent in sending and discussing the plans, directing the applicant to the building site and the payment of monies was also done for and with the express authority of the fifth respondent and/or directly for the benefit of the second respondent. There is no other plausible explanation why the fourth respondent would send and discuss the building plans and directing the applicant by text to the building site on 21 September 2023. As I noted, the fifth respondent's explanation for the two direct payment defies credibility and most likely represents payment for recent work including at the building site.
3. The facts show that the applicant was generally dealing with the fifth respondent, lesser so with the fourth respondent and payments were generally made in cash. In those circumstances there was no reason why the applicant would have known of the second respondent's existence.
4. The applicant also submitted that the fifth respondent had ostensible authority relying on the principles discussed in Pacific Carriers Ltd v BNP Paribas.[144]
5. If I am wrong that there was express authority provided by the second respondent to the fifth respondent, then I repeat the reasons set out above and find that the second respondent clothed the fifth respondent in ostensible authority.
6. Based on the earlier findings, the applicant was injured at the building site. He was obviously performing work for someone.
7. The only logical explanation is that the applicant must have been paid by someone both previously for work where the second respondent undertook bricklaying contracts and for the work at the building site. The likely explanation is that, as the applicant stated, he was regularly paid in cash by the fifth respondent. The text messages between the applicant and the fifth respondent on 15 September 2023 only confirms this conclusion. The direct payments in late September 2023 were for the same purpose.
8. Recourse to the parties' conduct can be considered where the contract was partly oral to "identify the point at which the contract was formed and the contractual terms that were agreed": Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting.[145]
9. Applying this test, the actions of the applicant and the fifth respondent show that there was agreement including the applicant's attendance at the building site on various occasions and on 30 September 2023. These actions include the supervision and direction by the fifth respondent on that day and the applicant's performance of work at the building site.
10. There are two other matters which were not the subject of any submission.
11. First, there was no submission that there was an absence of intent to create legal relations. The test is an objective one.[146] The intention to create legal relations in this matter arises from the business relationship whereby the work was undertaken in furtherance of the second respondent's contractual obligations to the first respondent with the applicant supplying his labour to the second respondent for reward.
12. Secondly, there was a complete absence of submission concerning the relevant terms of the contract save as to identification. There was no relevant submission as to the duration of any contractual arrangement.
13. The texts show that generally the fifth, and sometimes the fourth respondent, would direct the applicant to a work site on the prior day. The evidence shows that this occurred almost, but not entirely, daily for the period from 8 September 2023 when the applicant submitted that he was exclusively engaged by the second respondent. Both the texts and the performance of work show that the applicant was directed to work at a particular site, would work there and be paid an hourly rate.
14. There is a compelling argument that the arrangement was for the applicant to provide bricklaying services for the following day at the rate of $50 per hour. Whilst it does not impact on the identification of the contracting party, it is relevant to the characterisation of whether there was an employment relationship and is subsequently discussed on that issue.

Characterisation of the relationship between the applicant and the second respondent

1. I adopt the submissions made by Mr Davidson SC concerning relevant legal principles in construing the characterisation of the relationship between the parties where the contract is wholly oral. The respondents made no contrary legal submission.
2. In UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer[147] Snell DP accepted the Member's reasoning as legally correct that in wholly oral contracts, the multifactorial test and usual indications of employment remained relevant. Recourse may be had to conduct, where necessary to identify "the contractual terms that were agreed".[148]
3. The applicant noted the critical aspect of the second respondent's right to control the work of the applicant referring to the observations of the plurality in Personnel Contracting[149] that:

"... this Court in Stevens and indeed in Zuijs v Wirth Brothers Pty Ltd itself, emphasised that it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee."

1. The applicant's oral and written submissions distinguished between earlier periods and what occurred in September 2023. In written submissions the applicant referred to the "critical period of 18 to 30 September 2023". In his oral submission the applicant referenced the critical period was from 8 September 2023 until the date of the accident.[150]
2. The applicant also submitted that the indicia of the relationship in the "critical period" is that he was an employee working for the benefit of the second respondent and/or the fourth and fifth respondents. Reference was made to the decision of Carbone v Workers Compensation Nominal Insurer.[151] He referred to the facts that:

(a) cash payments from the fifth respondent disclosed in the personal taxation return;

(b) the applicant was not, at the relevant time, conducting business through the company;

(c) he was paid by the hour, and

(d) he was continuously engaged since early September 2023 which was "more than enough time".

1. The applicant submitted that this period was more than enough to establish a worker/deemed worker relationship.
2. Mr Stile submitted that the evidence contradicted the applicant's assertion that he worked exclusively for the fourth and fifth respondents since March 2023. Mr Stiles submitted that the applicant, on his own documentary evidence, was an independent contractor operating a business.
3. Mr Stiles submitted that the statements by the applicant that during the period from March 2023 he was only paid and exclusively received instructions from the fourth and/or fifth respondents[152] was incorrect.
4. Mr Stiles referred to the applicant's evidence that he worked for his company (Perfect Masonry Pty Ltd) up to 5 August 2023 in relation to work for "Decent Homes".[153] This was clearly inconsistent with the earlier evidence that the applicant exclusively worked for the fourth and fifth respondents.
5. Mr Stiles referred to the applicant's 2023 taxation return which showed income from either Perfect Masonry Pty Ltd or income earnt as a sole trader. The 2023 company taxation return showed wages, presumably paid to the applicant as it accorded with the applicant's personal taxation return and other contractor expenses in the sum of $1,140. He submitted that it showed that the applicant's company was operating a business paying sub-contractors other than the applicant and paying the applicant a wage.
6. Mr Stiles referred to the "totality of the arrangements" which showed that some of the bricklaying payments were run as an independent contractor and parts of the arrangements were run through the applicant's company (Perfect Masonry Pty Ltd).
7. Mr Stiles submitted that the applicant was carrying on a business not only in the company name, but in his own name.
8. Bank statements showed receipts from Plumb Wall Pty Ltd and Decent Homes. Mr Stiles otherwise submitted that Kemstruct paid the applicant as a sole trader and not as an employee. The applicant's statement about "exclusivity" during the entirely of the six-month period until the injury was simply wrong.
9. Mr Robin in submissions emphasised that the level of control asserted by the applicant which was inconsistent with the applicant's account. He referred to text messages that showed:

(a) the applicant reaching out to the fifth respondent if he could find a labourer;

(b) the fifth respondent seeking the applicant's advice about the quality of work undertaken by an unknown person and whether that person should be retained, and

(c) the applicant and the fifth respondent discussed whether or not to go to a job because of the rain. That conversation showed the "lack of control" over the applicant "turning up to work. ... basically it was up to him".[154]

1. Mr Robin also referred to the fact that the applicant alleges that he was paid $50 an hour which, it was submitted, represented a sub-contractor rate given the fifth respondent was paid $30 an hour as an employee.
2. Mr Robin referred to the applicant's possession and supply of tools and the suggestion by the applicant that he does not provide tools "was misleading at best". Reference was also made to the claimed deduction for sand in the taxation returns.[155]
3. The decision of Carbone was referenced by the applicant as particularly relevant in his submissions. These cases are fact sensitive, and any factual findings create marginal if any precedent. That decision does not assist in the resolution of the present matter.
4. If, as the respondents submitted, the applicant's financial position is examined over the six-month period prior to the accident then his case is hopeless. The applicant either worked through his company or as an individual for various entities. At times the applicant engaged other workers/sub-contractors, provided materials (as disclosed in his returns) and was obviously open to and accepted work from persons other than the second respondent.
5. As Mr Robin submitted, the documentary evidence in the earlier period showed that the applicant purchased materials. The conclusion that the applicant was not a worker/deemed worker in the previous period is inevitable given the fact that the applicant was not exclusively engaged by the second respondent and operated and was engaged, for at least part of the time, through his own company.
6. I was unassisted by submissions from the parties on why the relevant period is restricted to the September period. I was unassisted by any submissions on the terms of the contract entered into between the applicant and the second respondent noting that it was the respondents' implausible contention that there was no arrangement, and if the applicant was at the building site, then he was there engaged by some unknown person other than the second, fourth or fifth respondents.
7. The respondents' submissions did not address the September 2023 period and concentrated on matters in earlier periods. The evidence of the fourth and fifth respondents was that there was no work undertaken by the applicant through their direction at that time. The implausibility of that evidence has been rejected for the reasons outlined earlier and herein.[156]
8. The respondents did not address the applicant's argument of the "critical period" concentrating their submissions on the previous period when the applicant was clearly not a worker or deemed worker engaged by the second respondent. Mr Davidson SC did not suggest otherwise concentrating his submissions on the nature of the contractual arrangements in September 2023.
9. I accept the applicant's submission that the period from early September 2023 represented different contractual arrangements from the position set out earlier. Unassisted by submission on relevant authority on this issue, I proceed on the basis that the applicant must show on first principles that the contractual relationship changed from the earlier period.
10. From 6 September 2023 the text records show there is exclusivity between the applicant and the second respondent through the fifth respondent. Prior to that time the applicant worked for various entities including through his company with Decent Homes and as a sole trader for Plumb Wall Pty Ltd from early August 2023 up to 5 September 2023.
11. I agree that during the period after 5 September 2023 the applicant was engaged on an almost daily basis and was directed by mainly the fifth and occasionally by the fourth respondent to a work site where the second respondent was performing the bricklaying work. The text messages show that the directions were sent almost daily directing the applicant to a work site suggesting a short-term casual contract on an almost daily basis.
12. During what the applicant submitted was the "critical period", I make the following factual findings.[157] These findings are principally based on the applicant's evidence and the text messages noting that the evidence of the fourth and fifth respondent was that they were unaware that the applicant was at any site including the building site.
13. The applicant was generally directed to a work site on the day before by the fifth respondent and on occasions by the fourth respondent.
14. The applicant performed bricklaying work at a site where the second respondent was the bricklaying contractor including at the building site.
15. The applicant provided his labour and was paid $50 per hour, was paid by cash (particularly by the fifth respondent on 15 September 2023) although the last two payments were made by direct deposit; organised by the fifth respondent and paid by the fourth respondent.
16. These payments were made on or behalf of the second respondent. I repeat the factual findings on identification as part of the findings for the characterisation of the relationship.[158]
17. The rate of $50 per hour was paid through the applicant's ABN. Accordingly, as matter of law the applicant would be responsible for accounting for any GST.
18. The agreement of $50 per hour may have been above the rate for a full-time employee, although not excessively. The rate was closely aligned with a casual employee rate indicating that the applicant did not receive benefits such as sick leave, annual leave or any other entitlements such as superannuation reflecting a common understanding based on the practice between the parties.
19. The second respondent provided the materials required for the bricklaying work. This included the plans for the building site showing the nature of the work that the applicant was required to undertake.
20. The applicant did not provide any materials or tools during this period.
21. The fifth respondent was present on the day of the accident directing the applicant in his work. The applicant, as an efficient bricklayer being paid above the market rate, did not require direction as to how to perform the work although he was directed as to what was required to be done. This included, at the time of the injury, being directed to lift and move planks to make scaffold.
22. The payment of $50 per hour to the applicant's ABN is consistent with the applicant's 2024 personal taxation return and is not suggestive of an employment relationship.
23. The applicant was paid an hourly rate, generally for a days' work although sometimes shorter with a consistent starting time[159] and did not negotiate a fee for a particular job. These facts suggest an employment relationship.
24. The degree of control and exclusivity exercised by the second respondent through the fifth respondent during this period is significant and a compelling factor in the conclusion that the applicant was employed by the second respondent. The applicant was told where to go on the evening before and what to do on an almost daily basis. I accept the applicant's evidence that he was engaged exclusively through text offers by the fourth and fifth respondents during this period.[160]
25. To the extent that the the principles of discussed in Malivanek v Ring Group Pty Ltd[161] are relevant, the applicant, whilst working at the building site and appeared to be working in the business of the second respondent. I base this conclusion on the applicant's evidence showing the direction to work at the building site and the degree of control exercised by the fifth respondent over the applicant.
26. Whilst of only marginal relevance, the evidence of Mr Nader is consistent with the various sub-contractors working for the second respondent at the building site.[162]
27. Whilst the matter is not clear noting conflicting indicia and adopting the multifactorial test,[163] I am satisfied on the balance of probabilities that the applicant, since early September 2023, was engaged in a series of short-term casual contracts employed by the second respondent.
28. I accept that the manner of payment and how it was treated by the applicant as disclosed in his taxation returns is not suggestive of an employment factor. This is a matter weighing against the finding of an employment relationship.
29. However, the applicant was paid an hourly rate as opposed to the rate for the completion of a task, the applicant was solely providing his labour, had set hours, was under the direction of the fifth respondent (on behalf of the second) both as to where and when to work and what was required, did not provide tools and materials and there appeared to be a degree of exclusivity of engagement reflecting the expectation that he was to be placed at a site each day.
30. These indicia in favor of the conclusion of an employment relationship, contrasted with the previous period when the applicant provided materials and equipment, worked for various entities and contracted out the work.
31. At the time of sustaining injury, the applicant was employed as a casual worker by the second respondent.

1. "Suitable employment" is defined in s 32A of the 1987 Act as "employment in work for which the worker is currently suited":

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

(ii) the worker's age, education, skills and work experience, and

(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v) such other matters as the Workers Compensation Guidelines may specify, and

(a) regardless of:

(i) whether the work or the employment is available, and

(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

(iii) the nature of the worker's pre-injury employment, and

(iv) the worker's place of residence."

1. Schedule 3, cl 9 of the 1987 Act defines current work capacity and no current capacity as:

"An injured worker has no current work capacity if the worker has a present inability arising from an injury such as the workers not able to return to work either in the workers pre-injury employment or in suitable employment.

An injured work has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the workers pre-injury employment or able to return to suitable employment that the weekly amount that the worker has the capacity to earn in such employment is less than the weekly amount that the worker had the capacity to earn in such immediately before that injury."

1. I refer to the earlier finding of the nature of the applicant's injury.
2. The applicant is unfit by reason of his back injury to perform his pre-injury employment which involves repetitive lifting and bending as a bricklayer.
3. The applicant's statement evidence shows that he is a bricklayer by trade since he came to Australia. Despite his young age, there are no transferable skills.
4. The evidence supporting the finding that the applicant had no current work capacity are the various certificates of capacity and the applicant's evidence.
5. An updated certificate of capacity dated 1 May 2025 certified the applicant with no current work capacity.[164]
6. The respondents made no contrary submissions when invited to address this issue.
7. For these reasons, I find that the applicant had no current work capacity at all times since the injury.

1. The applicant provided written submissions at the hearing on this issue. After the hearing the first, second and sixth respondent filed a written submission contending that the PIAWE was $1,336.96. The fourth and fifth respondents indicated that they agreed with that submission.
2. In his reply submission, the applicant advised that he "does not object to the figure of $1,336.96 per week being used for his PIAWE".
3. Accordingly, I accept the applicant's concession that the PIAWE is $1,336.96 noting the figure is required to be indexed pursuant to s 82A of the 1987 Act.

1. Section 9A was not raised as a defence and it is probably unnecessary to refer to the provision.
2. However, I note that the injury was caused in the performance of work involving heavy lifting and the applicant jumping to the ground. There is an overwhelming causal nexus satisfying the s 9A test between the employment concerned and the injury.

1. The findings and orders are set out in the Certificate of Determination.
2. The second respondent is liable for the payment of the weekly compensation as it is insured pursuant to the provisions of the 1987 Act.
3. The sixth respondent would have been liable if the fourth and/or fifth respondents were ordered to pay compensation as they were uninsured for the purposes of the 1987 Act. This has not occurred as, in accordance with the manner argued by the applicant and the findings, the second respondent is ordered to make payments of compensation. Accordingly, there is no basis to make an award against the sixth respondent and an order is entered in its favour.

[1] Orders/directions at preliminary conference dated 22 April 2025.

[2] Applicant's late Application, pp 6-9.

[3] Sixth respondent's late Application, p 372.

[4] Late Application filed by the applicant attaching building plans.

[6] Sixth respondent's late Application, p 372.

[7] These concessions were made after the luncheon adjournment.

[40] Applicant's late Application, p 14.

[55] Application, pp 88 - 90; Applicant's late Application, p 15.

[56] Applicant's late Application, p 15.

[64] Applicant's late Application, p 11.

[66] Sixth respondent's late Application p 372.

[68] This is a reference to the text message at page 80 of the Application.

[69] Fourth's respondent's reply, pp 6-8.

[74] Fifth respondent's reply, pp 13-14.

[84] Applicant's late Application filed after the hearing date.

[89] 6th respondent's late documents, p 366.

[95] Late Application, sixth respondent, pp 145 - 180.

[96] Late Application, sixth respondent, pp 296-300.

[97] Late Application, sixth respondent, pp 309-311.

[98] Late Application, sixth respondent, p 313.

[105] Application, pp 468 - 479; Applicant's late Application, pp 1-3.

[106] Applicant's late Application, p 4.

[107] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]-[55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].

[110] The date is unclear- see Application, p 88.

[117] Application, p 7, para 85; p 9, [123], [126] and [132].

[118] Applicant's late Application, p 14.

[119] Applicant's late Application, p 15.

[120] [2014] NSWWCCPD 68.

[121] [2013] NSWCA 416 (MSPR).

[123] Application, p 7, [98] and applicant's late Application attaching the structural pans.

[129] [2023] NSWCA 118.

[131] (1991) 23 NSWLR 142 (Pitcher).

[132] (1991) 23 NSWLR 142 at 147.

[135] [2010] NSWSC 169.

[136] [2015] FCA 377 at [26].

[137] [2007] NSWCA 125.

[138] at [59], Spigelman CJ agreeing.

[139] [2010] FCA 1163; (2010) 80 ACSR 56.

[141] Sixth respondent's late Application, p 372.

[142] During submissions I was taken to this list

[143] [1901] UKLawRpAC 21; [1901] AC 240 at 261.

[144] [2004] HCA 35.

[145] [2022] HCA 1 at [190] per Gordon J.

[146] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25].

[147] [2023] NSWPICPD 11 (UPVC).

[148] See Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2021] HCA 1 at [190] per Gaudron J, applied in UPVC at [123].

[150] Applicant's written submission, para 24.

[151] [2024] NSWPIC 42 at [224]- [228] (Carbone).

[152] See for example Application, p 1, [31].

[154] I agree that this submission was fairly put by the fifth respondent. However, this evidence undercut the fifth respondent's oral evidence that he never worked with the applicant.

[156] At [207]-[212] and [274]-[276].

[161] [2014] NSWWCCPD 4 at [177] - [184].

[163] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1; Hollis v Vabu Pty Ltd [2001] HCA 44.

[164] Applicant's late Application, p 2.