The issue in this case was whether Mr Ewart was a
"worker" within the meaning of the Workers
Compensation and Injury Management Act 1981, WA.
Although turning on its facts, it addresses all of the features
of the frequently litigated question of "employee or
sub-contractor" as well as the broader question of whether or
not the claimant is a "worker".
Ewart claimed compensation following a fall from a ladder and
argued that he was employed under a contract of service by Caruso.
His work was that of a painter handyman. He had a business name
that he had used before and the evidence pointed to a sub-contract
rather than an employment contract. However, it was also clear that
his pay was probably "in substance for his personal manual
labour or services", in which case, even if found to have been
engaged under a contract for services, he may nevertheless be a
"worker" and therefore entitled to compensation.
As a sub-contractor, Ewart had been working on the Admiral
Stirling Inn at Margaret River which was being restored by Caruso.
However, it was found that, at the time of his injury, the work on
the Inn had finished and he was carrying out work on his
brother's property. He had nevertheless been asked to carry out
this work by Caruso, who was also going to pay him (the judgment
does not explain in detail how this arrangement came about).
The arrangement was critical because at the time of the injury,
the employment (by sub-contract) was of a casual nature. This would
not ordinarily have been fatal to the claim, except that Ewart had
finished working on Caruso's property, which may have been
regarded as relevant to Caruso's trade or business, and taken
on the other job which, although being paid for by Caruso, was not
evidently for his trade or business.
Accordingly, relying on the definition of "worker"
under the Act, the application for compensation was dismissed.
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about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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