Can an independent contractor qualify as a 'worker'?

The Industrial Court of Queensland recently dealt with a case involving a worker's appeal of a decision by the Workers' Compensation Regulator to deny him compensation.

The case centered around whether the worker qualified as a "worker" under the Workers Compensation and Rehabilitation Act 2003 (WCR Act), despite being engaged as an independent contractor.

The worker had been employed by a company called Technofibre but, following an injury and the relocation of the company, he sought employment as a courier driver.

He entered into a contract with Allied Express Transport Pty to perform courier work exclusively for them. The worker was injured while sorting through stacked items at Allied's warehouse.

Commission’s initial decision

The Queensland Industrial Relations Commission (QIRC) upheld the Regulator's decision to deny the worker compensation, finding that he did not qualify as a "worker" under the WCR Act.

The QIRC determined that the worker was not a "contractor" before entering into the contract with Allied and that the work performed was incident to the courier business he was carrying on.

The worker appealed the QIRC's decision to the Industrial Court of Queensland. The court considered the definition of "worker" under the WCR Act and the extension of this definition to certain contractors under Schedule 2, Part 1, section 3 of the Act.

Interpreting the legislation

In this case, the court disagreed with the QIRC's interpretation that the worker had to have the status of a "contractor" before entering into the contract with Allied.

The court found that the Act was concerned with the status of the worker while the work was being performed, not their status prior to the contract.

The court also considered two possible constructions of section 3 of Part 1 of Schedule 2:

1. The "business" can be exclusively confined to the "performance of work" for the entity for whom the person is arguably a "worker".
2. The "contract ... for the performance of work" must be considered separately from any business "regularly carried on by the contractor".

The court preferred the second construction, finding that if there is a business or undertaking wider than just the contract under consideration, section 3 will not apply.

Could he qualify as a ‘worker’?

The court found that the worker qualified as a "worker" under section 3 of Part 1 of Schedule 2 of the WCR Act because of the following circumstances:

• He made a contract with Allied for the performance of work.
• The contract was not a contract of service but a contract for services.
• He was thereby a "contractor".
• He did not conduct a business beyond the "contract for the performance of work" with Allied.
• The work to be performed pursuant to the contract with Allied was not incident to a business regularly carried on by him.

The court then allowed the appeal, set aside the QIRC's orders, and remitted the worker's claim for compensation to WorkCover to be considered according to law.