Two separate appeals have been commenced in the Supreme Court by BSA Limited (BSA) against the VWA in respect of determinations made against BSA to accept workers’ claims for compensation. In each case, the VWA has made a written determination that (a) an employee of a contractor company is a ‘deemed worker’ of BSA; (b) that BSA is the ‘deemed employer’ of the employee under s 4(3) and cl 9(1) of Schedule 1 of the Workplace Injury, Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act); and (c) that the deemed worker is thereby entitled to claim under BSA’s WorkSafe Insurance policy. BSA has appealed each determination.
In BSA Limited v VWA [2016] VSC 435 the Supreme Court considered for the first time the preliminary question in both proceedings: whether an appeal under s 85 of the WIRC Act was an appeal by way of: (a) a hearing de novo; or (b) a review of the decision; or (c) some other form of appeal. The VWA contended that, construed by reference to text, context and purpose, an appeal under s 85 of the WIRC Act against a decision of the VWA was an appeal in the nature of judicial review of the decision and not by way of a hearing de novo. BSA disagreed. Garde J held in respect of the preliminary question, that the appeal provision properly construed, conferred a right to a de novo merits appeal.
The decision will affect how an appeal against a determination made by the VWA is conducted and is of significance for the VWA, employers, contractors and workers who may all be joined.
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