ALVAREZ v FIDREZ [1997] NSWCA 15

ALVAREZ v FIDREZ

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and COLE JJA, and SHEPPARD AJA 27 August 1997, 27 August 1997

[1997] NSWCA 15

QUESTION of whether appellant was an employee or sub-contractor HELD appellant's employment had been terminated by a new arrangement between the respondent and subcontractor; appellant not a worker under the Workers Compensation Act 1987

Cole JA Judge Truss dismissed a claim brought by the appellant against the respondent for weekly compensation and s66 and s67 payments arising out of an injury suffered by the appellant on 28 April 1994. She did so on the basis that the appellant was not a worker of the respondent within the meaning of that expression as defined in s3 of the Workers Compensation Act 1987, and did not fall within the deemed worker provisions contained in Schedule 1, cl2 to the Act. Her Honour found that although the appellant had been a worker of the respondent until March 1990, thereafter by agreement between himself and the respondent, which was a company conducted by his brother, he had ceased to be an employee when he had established his own company Patxi Welding Services Pty Ltd which thereafter had contracted with the respondent for the performance of welding work to be performed by the appellant.

On appeal three issues were raised by the appellant. First it was contended that the change in arrangements which occurred in March 1990 did not constitute a termination of the admitted pre-existing employment between the appellant and the respondent, but merely constituted an agreed variation to the basis and manner of remuneration under the contract of employment, namely, that in future payment would be made to Paxti Welding Services Pty Ltd at an hourly rate for work performed by the appellant. Second, that the appellant was a "worker" within the definition of that expression in s3, and third that, in the alternative, he was a worker within the meaning of the deeming provisions in Schedule 1, cl2.