Injured electrician not an employee

The Victorian Court of Appeal (VCAT) has overturned a ruling awarding almost $900,000 to an electrician who was seriously injured by a fall into a lift well, saying its examination of the totality of the relationship left little doubt the electrician was an independent contractor.

The electrician was a self-employed contractor from 1984 to the time of the accident in June 2002.

In 2000, Elazac Pty Ltd engaged the electrician to assist as project manager in the refurbishment of 401 Collins Street, Melbourne. The role eventually included servicing the lifts in the building.

VCAT held that whilst Elazac exercised control over what work was to be done at what time, Elazac did not exercise control over how work was to be performed by the electrician. The electrician was able to allocate his own employees or employees of Elazac to do the work, and was also able to retain contractors to perform particular jobs:

“The method of performance of whatever work was required and who it was to be performed by were left to the discretion of the [electrician].”

It said the "most significant feature" of the case was the electrician's employment of his own workers at work sites where he was required to perform work.

"Not only did the [electrician] consider himself to be self-employed, everything he did in the course of his work suggested that this was so: he employed employees; his tax returns and financial documentation disclosed he was operating a business in partnership with his wife; he could determine who he employed and where they worked; he performed additional work (in working hours) for an organisation unrelated to [Elazac] (and sent his employees to work there from time to time); and finally, [Elazac] did not deduct taxation from the [electrician's] pay and did not pay him holiday pay, sick leave, long service leave or superannuation."

KEY POINTS: In contrast to the recent decision we discussed in our last column, the evidence in the present case disclosed a contractor relationship, given the discretion as to how work was performed, the provision of work to unrelated entities and records disclosing he was operating his own business.