Working Director Not Deemed Worker

In Sarac v Itexcel Pty Limited [2015] NSW WCC PD 32, DP Roche considered an Appeal from a finding that a Working Director was not a deemed worker.

It was argued that the Senior Arbitrator had erred in finding that because the claimant was a Director of his own company which had contracted with the Respondent, he could not be a deemed worker within the meaning of Clause 2, Schedule 1 of the Workplace Injury Management & Workers Compensation Act 1998.  That Clause provides:-

“(1) Where a contract; 

(a) To perform any work exceeding $10.00 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or….

is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act taken to be a worker employed by the person who made the contract with the contractor”.

DP Roche agreed with the Senior Arbitrator’s finding that because the claimant’s own company employed him, he had not contracted with the Respondent:-

“because his own company employed him, and because that company contracted with the Respondent, he was unable to establish that he was a party to a contract with the Respondent to perform work and unable to rely on Clause 2 of Schedule 1”.

The Deputy President confirmed the Senior Arbitrator’s decision.