A “grey nomad” whose fiancé was electrocuted on a North Queensland farm where the couple had an informal employment arrangement, has won an appeal for compensation.
Caravaner Tracey Ann Foord appealed a decision by the Workers’ Compensation Regulator in February last year to confirm an earlier decision by WorkCover Queensland to reject her application under the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
Last month the Queensland Industrial Relations Commission allowed the appeal and set aside the decision, determining that Barry Fludder met the extended definition of “worker” under Section 11(2) and Schedule 2, Part 1 of the Act.
On 16 May 2023, Mr Fludder suffered fatal injuries while repairing a water pipe on the Cape Hillsborough property. Ms Foord had answered an advertisement on Facebook page for a group “Working on the Road in Australia”.
The 10 May post by property owners Michele and Dwayne Shea offered a caravan site in return for 10 hours a week of property maintenance to prepare the property for sale.
The parties agreed to two weeks, with the couple arriving on the Sheas’ property on 12 May, setting up their caravan and starting work the next day.
Industrial Commissioner McLennan agreed with Ms Foord’s submission that Mr Fludder was not excluded from the definition of worker for the purposes of s 11(3) because he met particular circumstances set out in s 3 of Schedule 2, Part 1 of the Act.
Ms Foord submitted that the regulator fell into error by determining that s 3 of Schedule 2, Part 1 of the Act required consideration of whether or not Mr Fludder had a “contract of service” or a “contract for service”.
In the event consideration was required, the regulator had fallen into error by determining he was engaged under a contract for service rather than a contract of service, she submitted.
Industrial Commissioner McLennan found Mr Fludder was a “contractor” under the Act.
“I have found that Mr Fludder met the definition of “contractor” because the nature of the agreement reached with the Sheas was a contract for the performance of work. Specifically, that work included ‘helping out with whipper snipping, some weeding and helping to organise’ the shed and generally ‘help clean up the property’ ready for sale,” she said.
“In my view, Mr Fludder’s efforts to fix the leaking water pipe are consistent with the work he contracted to perform for Mr and Mrs Shea.
“Although it is clearly not “whipper snipping”, “weeding” or “helping to organise [a] shed”, fixing a leaking water pipe does fall under the description of “general clean-up of the property” getting ready for sale.”
Industrial Commissioner McLennan found there was a contract between the parties, after the regulator had argued the situation was best characterised as “an exchange of favours”.
“That contract was comprised of written components (the Facebook post and subsequent message exchange between Ms Foord and Mrs Shea) and the oral discussions that occurred once Mr Fludder and Ms Foord reached the property, started to perform work under Mr and Mrs Shea’s direction in fulfilment of their obligations, and further established the terms in conversations between the couples,” she said.
She said the Facebook post contained the elements of an offer of employment: “electricity, water and a place to park up”, “in return” for “ten hours help a week”.
“The messages exchanged between Mrs Shea and Ms Foord demonstrates exploration of the terms so offered, which I believe was then subject of further conversation between the two couples upon Ms Foord and Mr Fludder’s arrival at the Sheas’ property,” she said.
“Ultimately, Mr Fludder and Ms Foord did perform work on the Shea’s property, consistent with the terms agreed.
“On the balance of probabilities, I consider they would only have done so to uphold their end of the bargain made with Mr and Mrs Shea.”
Industrial Commissioner McLennan ordered the appeal be allowed and Ms Foord’s application for compensation be accepted.
She also ordered that the regulator pay Ms Foord’s costs.
Share this article