There has been a rapid increase in forms of work that do not adhere to the standard employer/employee relationship and there is every indication that this trend will continue.  The contracting out of labour is popular due to changing business needs, and in Australia, contractors are an ever-growing proportion of the workforce[1] – witness the almost exponential increase in the growth of the labour hire industry over the last decade or so.

It is clear from the cases to which I will refer in this paper, that an employer which engages a contractor may be held liable for the contractor’s negligence in carrying out a given task. [2]

The legal liability of employers and independent contractors for occupational health and safety violations falls into two categories:

1. common law liability, which normally involves some form of personal injury and therefore the law of tort; and
2. statutory liability, which in South Australia equates to criminal liability under our OH & S legislation.

While the common law binds all jurisdictions, statutory liability differs from jurisdiction to jurisdiction.

Parliaments around Australia have enacted legislation in the OH&S area that is, for the most part, comprehensive.  In contrast, the courts have been slow to widen the principles associated with a principal being liable for the acts of independent contractors.  The extension of the scope of an employer’s responsibility for a contractor’s negligence has been slow and incremental.  Beyond some broad guidelines, there is uncertainty regarding the application of the common law in this area.  Further review of the common law is required, and perhaps with regard to what forms of work relationship are covered by the legislation, also of the statutory regimes.

One of the first questions that arises in this area is: why is liability so focused on employers for occupational health and safety breaches?  If the contractor is responsible for the violation why shouldn’t they be held accountable for their own actions? As Ewan McKendrick noted, there are sound policy reasons for attributing liability to the employer rather than the contractor:

“… [T]here is a general consensus that it is the most efficient method of ensuring that those who suffer loss as a result of a tort committed in the course of a business do not go uncompensated.  The employer is closely associated with the commission of the tort because it was committed in the course of his business and he is usually in the best position to distribute the loss through insurance and the pricing of his product.”[3]

I will consider the many issues that arise in this area by first turning to the position at common law (which covers all Australian jurisdictions) before moving to the position under the South Australian legislation.  I will then briefly discuss the interstate situation before concluding with some tips for employers and contractors about how to avoid occupational health and safety violations.  Obviously, best practice should be the goal in order to avoid either common law or statutory liability.  Avoidance of OH & S breaches is of the utmost importance given the likelihood of injury if appropriate OH & S procedures are not in place, not to mention the cost associated with criminal prosecutions and damages claims.  In addition, compliance with effective OH & S regimes is particularly imperative in the age in which we live given that:

[T]he competitive pressures that induce business to turn to outsourcing also encourage [contractors] to cut costs by underbidding on contracts, using cheaper or inadequately maintained equipment, reducing staff levels, speeding up production, or working longer hours.  Organisational forms relying on [contracting] create fractured, complex and disorganised work processes, weaker chains of responsibility and ‘buck-passing’ and a lack of specific job knowledge (including knowledge and health and safety) among workers moving from job to job.[4]

Common Law Liability In Tort

As a general rule an employer (principal) is not liable for the negligence of an independent contractor at common law.  This general rule is subject to two exceptions:

1. where the negligent act was itself authorised by the employer; and
2. where a non-delegable duty is imposed on the employer.

The first exception is self-explanatory.  It holds employers responsible for their actions.  In the same way, an employer can be personally liable in negligence for hiring an independent contractor who is clearly not competent to carry out the task.[5]

As to the second exception, a non-delegable duty is a duty imposed on an employer which is personal to the employer, it cannot be satisfied by hiring a contractor to carry out the task; even if delegated, the employer remains liable if the task is carried out in negligent manner.[6] A non-delegable duty imposed on an employer substitutes the usual ‘duty to take reasonable care’ in the law of negligence with a more rigorous ‘duty to ensure reasonable care is taken’.

A non-delegable duty is a form of vicarious liability.  Vicarious liability is liability that falls on one person as a result of the actions of another.  The so-called distinction between non-delegable duties and vicarious liability has been stated to be that the former makes the employer personally liable and not vicariously liable.  However, it has been suggested that this is “playing with words and neither can nor does point to a substantial distinction”.[7]

There is no clear-cut statement when common law liability will be imposed on an employer for the actions of independent contractors.

There are however certain well-accepted categories of non-delegable duties, such as that owed by an employer to an employee. Aside from these established categories, the law is not straightforward.  As to the employer/employee non-delegable duty, employers owe their employees a duty at common law to provide adequate plant and equipment, a safe place to work and a safe system of work

A number of High Court judgments have shaped the application of tort law in the area of non-delegable duties being imposed on employers for the actions of contractors.  The question to be asked is: in what circumstances does the negligence of an independent contractor amount to a breach of an employer’s non-delegable duty of care?  In order to attempt to answer this question, I will focus on a number of seminal decisions at common law.

The Cases

The most important judgments in this area are not all that modern and any recent cases need to be seen in the light that these seminal judgments have shaped the common law in this area.  Therefore, it is a useful starting point to consider the influential decisions of the High Court in this area.

Seminal Judgment No 1

Kondis v State Transport Authority[8]

The question before the court in this case was: was the STA liable to Mr Kondis for an admitted act of negligence on the part of an employee of an independent contractor?[9]

The Facts

Part of a crane, operated by an employee of an independent contractor, fell on Mr Kondis, an employee of the STA, and caused him injury.  It was conceded that the actions of the contractor, in allowing part of the crane to strike the employee, were negligent.

The Decision

Despite it being found that the contractor had the “entire supervision and control”[10] of the crane operation, the employer was held liable to the plaintiff for the injuries suffered that were inflicted by the independent contractor.

However, the duty imposed on the employer by the Court was qualified in the following terms: it only applied where the tasks of providing for the safety of appliances, the premises or the system of work to which the employer subjects his/her employee had been delegated by the employer.[11]

Mason J, with whom Deane and Dawson JJ agreed, suggested that the decisive factor in determining whether or not a non-delegable duty will be imposed on a defendant (employer) in a particular situation is that the defendant has assumed a responsibility towards the plaintiff.[12] Mason J attempted to establish some rational basis for the imposition of non-delegable duties as follows:

In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume responsibility for his or her safety, in circumstances where the person affected might reasonably expect that due care will be exercised.[13]

So, the employer was held liable for the admitted acts of negligence of an independent contractor however this liability was substantially qualified.

Seminal Judgment No 2

Stevens v Brodribb Sawmilling Company[14]

The Facts

Brodribb owned a large hardwood sawmill.  It engaged the plaintiff as a truck driver.  The logging operations involved a feller to fell trees, a snigger to push or pull logs to a loading ramp, and the loading of the logs onto a truck.  The plaintiff was struck by a log while assisting a snigger load a log onto his truck.  It was not disputed that the snigger acted negligently.  The plaintiff sought to impute liability to Brodribb.

The Decision

Both the sniggers and the truck drivers were held to be independent contractors of Brodribb and thus Brodribb did not automatically have a non-delegable duty of care towards them.

In a judgment with which Deane J and Dawson J agreed, Mason J held that there was a limited duty to be imposed on the defendant, namely: a duty to co-ordinate the work of its independent contractors.  They held that the operation created a risk of injury and therefore the defendant was under a duty to provide a safe system of work for the contractors.  Mason J said:

Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined.  If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.[15]

However, the duty imposed did not require Brodribb the retain control of the system of work.  “[I]t is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur”[16] and “Brodribb did not exercise control of, or retain a right to control or supervise, the loading operation.”[17] The duty so qualified, does not render an employer liable for the negligent failure of an independent contractor to operate the system of work appropriately.[18] Thus Brodribb was held not to be in breach of the duty that it owed the plaintiff.  Brodribb was not required to employ a person to supervise the process; it was not a breach to leave competent contractors to manoeuvre the logs onto the trucks.[19]

However, it has been noted that this duty would be applicable to independent contractors in a workplace such as a building site, where there are numerous contractors working together.[20]

In summary, the duty owed is to take care in the choice of contractors, to co-ordinate their work and provide them with a safe system of work but no more – there was held to be no further duty to supervise the system in operation, an employer can leave it to contractors to deal with issues as they came up.

In addition, the doctrine of extra-hazardous acts was in question in this case.  This doctrine is an exception to the general rule that an employer is not liable for the negligence of an independent contractor: a non-delegable duty will be imposed on an employer when the employer hires an independent contractor to do work which is extra hazardous (the plaintiff argued that snigging operations were extra hazardous).  While the doctrine has been adopted in the United States, Canada,[21] and to some extent in the United Kingdom[22], this case held that this principle is not part of Australian law.

Seminal Judgment No 3

Burnie Port Authority v General Jones Pty Limited[23]

The Facts

General Jones stored frozen vegetables in a building owned by the Burnie Port Authority.  The Authority engaged an independent contractor to install additional refrigeration.  This installation required considerable welding and also the use of a large quantity of expanded polystyrene (EPS; EPS with the commercial name of Isolite was used in this case).  While the Isolite contained a fire retardant, it could dissolve into liquid fire upon prolonged contact with a flame or burning substance.  The contractor carried out the welding in a negligent manner such that sparks or molten metal fell on one or more of the cartons of Isolite and a large fire ensued.  The welding operation was unguarded and in close proximity to cartons of Isolite.

The Decision

The majority held:

… [T]he overall work which the independent contractor was engaged to carry out on the premises was a dangerous activity in that it involved a real and foreseeable risk of a serious conflagration unless special precautions were taken to avoid the risk of serious fire.  It was obvious that, in the event of any serious fire on the premises, General’s frozen vegetables would almost certainly be damaged or destroyed.  In these circumstances, the Authority, as occupier of those parts of the premises into which it required and allowed the Isolite to be introduced and the welding work to be carried out, owed to General a duty of care which was non-delegable in the sense we have explained, that is to say, which extended to ensuring that its independent contractor took reasonable care to prevent the Isolite being set alight as a result of the welding activities.  It is now common ground that W. and S. [the contractors] did not take such reasonable care.

It follows that the Authority was liable to General pursuant to the ordinary principles of negligence for the damage which General sustained.[24]

It has been suggested that “the majority were searching for means of achieving an outcome favourable to the plaintiff”[25] by relying on a “dangerous activity” as the basis for a non-delegable duty.

The reason for scepticism over the category of non-delegable duties imposed in reliance on the dangerous nature of an activity is the great difficulty in distinguishing between those activities which are intrinsically dangerous and those activities which may become dangerous if negligently performed.[26]

For example, in Northern Sandblasting (see below), the activity in question was the repair work carried out by an electrician.  Residential electricity would not normally be classified as inherently dangerous, however if repair work by an electrician was carried out negligently, it can become so.

Seminal Judgment No 4

Northern Sandblasting Pty Ltd v Harris[27]

This case addressed the question of whether non-delegable duties should be imposed on landlords towards tenants and their families for the acts of independent contractors.

The Facts

The defendant owned a house in Townsville, which it leased to the Harris family.  At the time of purchase, the house was inspected and its electrical installations were passed by the North Queensland Electricity Board.  Approximately six months after moving in, Mrs Harris noticed the electric stove was not working.  The landlord arranged for an electrician to repair the stove.  During the repair, the electrician left a short length of an active wire exposed such that it could come into contact with a slack earth wire nearby.  Two days later, while standing on wet grass in bare feet, the Harris’ daughter was electrocuted as she touched a garden tap whilst the stove was on.  She suffered severe brain damage.  However, the negligence of the electrician was not the sole cause of the girl’s electrocution.

There were two fuse systems operating at the house.  The first was in the switch box.  When the stove short-circuited, due to the negligent repair, a fuse should have “blown”; this did not happen as the major earth wire in the switch box was not properly connected.  As a result, the active current was diverted along a major earth wire buried underground, such that the current should have found its way through the ground to a metal peg near an external power pole.  However, as the ground was a poor conductor, the current could not escape and it activated the water pipes in the vicinity.  When the Harris’ daughter touched the tap, she became a conductor for the electricity.  The trial judge found the loose connection in the switch box would have been discovered by a routine inspection prior to the Harris’ moving in.

The Decision

McHugh and Toohey JJ concluded that a non-delegable duty should be imposed on the landlord.  However, it has been noted that neither Judge made a compelling argument in support of their conclusions.[28] However, the majority of the court (Brennan CJ, Dawson, Gaudron, Gummow, and Kirby JJ) thought that it should not.

Brennan CJ explained what His Honour thought the difference between Burnie Port Authority and the present case was:

“… if the task which an independent contractor is employed to perform carries an inherent risk of damage to the person or property of another and the risk eventuates and causes such damage, the employer may be liable even though the independent contractor exercised reasonable care in doing what he was employed to do, because the employer authorised the running of the risk and the employer may be in breach of his own duty for failing to take the necessary steps to avoid the risk which he authorised. In Burnie Port Authority v General Jones Pty Ltd, following Stephen J in Stoneman v Lyons, I noted that the employer of an independent contractor would be personally liable:

“if the risk of damage arises from the way in which the work will necessarily be done or from the way in which the employer expects that it will be done, for in each of those situations the incurring of the risk is authorized by the employer. But the employer is not liable merely because it is foreseeable that the independent contractor might, on his own initiative, adopt a careless way of doing the work. If liability were imposed on an employer in that situation, the employer would become a virtual guarantor of the independent contractor’s carefulness.”

Cases of special relationships aside, the duty of care that arises when a task to be performed does not carry an inherent risk of damage to the person or property of another may be discharged by the engaging of a competent independent contractor to perform it. Whether a task does or does not carry an inherent risk of damage to another’s person or property is a question of fact to be determined in the light of common experience.

In the present case, when Mrs Harris advised the landlord that the stove was not working, the landlord appears to have accepted that it was its contractual duty to get the stove repaired. The work could be undertaken only by a licensed electrician. The repair could not be undertaken by the landlord’s unlicensed servants. The fact that negligence on the part of Mr Briggs might foreseeably cause injury to Nicole or to some other member of the tenants’ family or to the tenants’ visitors was not enough to impose a “non-delegable” duty of care on the landlord. …  The repair of the stove did not carry any inherent risk of injury unless it were negligently done. There was no want of due care on the part of the landlord in selecting Mr Briggs to repair the stove. Apart from the landlord’s duty to exercise reasonable care in the selection of a licensed electrician to repair the stove, no further duty in respect of the repair of the stove arose from the circumstances.”[29]

McHugh J found that such a duty was owed due to electricity being an inherently dangerous material.  His Honour cited the case of Burnie Port Authority and concluded that “[t]he present case cannot persuasively be distinguished” from the decision in Burnie.  However, upon review of both decisions, it appears McHugh J failed to distinguish between those activities which are intrinsically dangerous and those activities which may become dangerous is negligently performed (see above).

Kirby J, while holding that a non-delegable duty should not be imposed on the landlord in this case, discussed the various reasons for and against the imposition of such a duty in detail:[30]

His Honour’s reasons for the imposition of a duty:

• Tenants and their families are dependent on landlords as the landlord is the person with ultimate control of the premises and tenants in comparison have very little control.
• There were statutory obligations placed on the landlord to maintain the premises in a state fit for human habitation.
• The practical advantage of a landlord ordinarily being in better standing to obtain insurance (as opposed to independent contractors).

His Honour’s reasons against the imposition of a duty:

• Despite 130 years of analysis of the forms of non-delegable duties that may arise, the landlord and tenant relationship has never been subjected to such a duty, thus a move to impose such a duty without warning is too big a step and would ordinarily require legislative sanction.
• Although Parliament has discussed the matter, they have not imposed the more stringent duty that is the subject of this case.
• In light of the previous decisions of the High Court, there is no feature of a case that indicates the duty should be imposed here.
• An extra financial burden on landlords.
• Where a landlord responds to a tenant’s complaint in the way a reasonable person would, for example, by engaging a qualified independent contractor, it would be inconsistent to then impose liability in negligence on him/her as there is no other way he/she could have lawfully performed its obligations.

Interestingly, Mason J in Kondis (13 years earlier) predicted that negligence such as occurred in Northern Sandblasting would not impose liability on the party who hired the independent contractor:

It is not immediately obvious that it is appropriate to impose liability on the occupier of a house for injury caused to an invitee by the negligence of an independent contractor, eg, in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence on the contractor in a field in which the occupier has no expert knowledge.[31]

Summary of the Seminal Judgments

There is a non-delegable duty on employers to ensure the safety of appliances, of premises and of the systems of work employed.  In addition, an employer also has the duty to co-ordinate the work of independent contractors.  However, this duty is qualified and does not require ongoing supervision.  It may be possible to impose a non-delegable duty on an employer when an independent contractor is engaged to undertake extra hazardous activities but this duty would appear to be highly dependent on the factual circumstances and whether or not the activity was deemed inherently dangerous.  Lastly, it does not seem that there is support for the imposition of non-delegable duties on landlords.

The Most Recent Case

Hollis v Vabu[32]

This case raised issues of the nature of the relationship of employment and the scope of the doctrine of vicarious liability.  The decision primarily dealt with the employee/employer versus the contractor/employee relationship.  A number of the cases mentioned above also canvassed this issue.  I have not discussed the findings on this topic as I expect the speaker before me will have adequately described the differences between the two relationships.

The Facts

Vabu ran a business called “Crisis Couriers”.  Mr Hollis was leaving a building in Sydney, he stepped onto the footpath and was struck by a cyclist.  Although the cyclist remained unidentified however, he was however wearing the uniform of Crisis Couriers.  Mr Hollis suffered injuries as a result of being struck, primarily to his knee.

The Decision

The majority (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) held that the relationship between Vabu and the bicycle couriers was one of employer/employee and thus vicarious liability followed.  Their Honours highlighted the numerous factors which supported this conclusion (seven factors in all).

Their Honours went on to state that: “[t]erms such as “employee” and “independent contractor”, and the dichotomy which is seen as existing between them, do not necessarily display their legal content purely by virtue of their semantic meaning.”[33]

Commentary

It is possible that as a result of this decision, those previously regarded as independent contractors will now be classified as employees.  It suggests the courts will review the entirety of a relationship when making a determination; substance rather than form will be the key determinant.  In light of this decision, employers should ensure their relationships with workers they engage are properly categorised, even if they label the relationship as one of principal / contractor it may not necessarily be so.[34]

South Australian Common Law

Le Cornu Furniture & Carpet Centre Pty Ltd v Hammill[35]

The Facts

The plaintiff was employed by Qual-Chem who was contracted to do work on the roof of Le Cornu’s premises.  The roof was fragile and dangerous, the plaintiff fell from it and was seriously injured.

The Decision

Two of the three Justices of the Full Court held that Le Cornu owed a common law duty of care to the plaintiff and that this duty was non-delegable and had not been discharged.  Matheson J, with whom Prior J agreed, considered Kondis, Stevens v Brodribb, Burnie Port Authority, and Northern Sandblasting and quoted at length from Brodribb in particular.  His Honour concluded:

Asbestos roofs are seriously fragile, as Le Cornu well knew.  One of its employees named Jarrett had fallen through the roof in question on 12 December 1988 and been killed.  Thereafter Le Cornu did not permit its own employees to go on the roof. …  Qual-Chem was not a firm qualified by experience or otherwise in working on fragile roofs…  No crawl boards or safety equipment were present…  Employees of Le Cornu were on the Scotland Road premises [not the premises on which the plaintiff was working] at the time.  In those circumstances, I would find Le Cornu owed a duty to the plaintiff, and that it was clearly in breach of that duty.[36]

Although His Honour does not specify the non-delegable duties that the abovementioned facts breach, it could be assumed that they are:[37]

• The duty to ensure the safety of premises (Kondis).
• The duty to ensure the safety of a system of work (Kondis).
• And, in addition, perhaps also the negligent selection of a competent contractor may have been a factor.

Complete Scaffold v Adelaide Brighton Cement[38]

This case is the most comprehensive South Australian interpretation of an employer’s common law liability to a contractor.

The Facts

Mr Henry was a boilermaker with Allied Engineers.  Allied was contracted by Adelaide Brighton Cement (ABC) to carry out maintenance work for ABC at it’s premises.  ABC also contracted Complete Scaffold to provide and erect scaffolding at ABC’s premises as required during the course of the maintenance work.  During the maintenance work, ABC had workers on site, including its on-site supervisor.  Although ABC left it to Allied to determine how it would carry out the contract work, ABC did require the workers of contractors and subcontractors to observe safety procedures on-site and have them thoroughly explained.  During the course of the maintenance work, Mr Henry asked for scaffolding to be erected at a particular place on-site.  It was, but the planks were unstable and he fell and injured himself.  At trial, Scaffolding was found liable.  On appeal Scaffolding alleged that ABC was also liable both at common law and under the Act.

The Decision

In the Judgment of the Full Court, Doyle CJ delivered the principal judgment, Williams and Martin JJ agreed with the Chief Justice’s reasons.  Doyle CJ held that ABC had hired competent contractors by hiring Scaffolding and that Mr Henry was injured because of Scaffolding’s failure to carry out its work carefully and safely.[39]

As to a non-delegable duty of care existing, the Chief Justice commented on the High Court authorities listed above:

A consideration of the judgments of the various members of the High Court in Burnie and Northern Sand Blasting indicates that a circumstance favouring the imposition of a non-delegable duty of care is that the employer of a contractor (the issue will mainly arise when the act of negligence is the act of an independent contractor) requires the performance of a task or undertaking, or performance of a task in a manner, that carries with it an inherent and high risk of harm to others.  Another significant factor will be an undertaking of a particular responsibility for the safety of another person [see Kondis], or a special vulnerability on the part of that person.  But, beyond these broad guidelines, the effect of recent High Court decisions is that one must consider all relevant factors.  In my opinion one can at least say that putting aside relationships in which courts have recognised a non-delegable duty of care usually arises, the performance of a task that does not carry an inherent risk of damage to person or property may be discharged by engaging a competent independent contractor: see Northern Sand Blasting at 333 Brennan CJ.

In the present case the task that ABC contracted for Scaffolding to perform, the supply and erection of scaffolding as required, was not inherently hazardous. By this I mean it was not a task that, even when properly performed, carried with it a significant risk of harm.  Nor was it a task of such difficulty that the risk of something going wrong was very high.  I consider that those two propositions may be advanced, even though it is well recognised that the erection of scaffolding is a task calling for specialised skills and a good deal of care.  Nor was the task undertaken by Scaffolding one which involved a risk of extreme harm or harm of great magnitude, if something went wrong.  To say that is not to minimise the seriousness of injury to a worker, but merely to contrast the erection of scaffolding with, for example, the handling of materials that might result in a destructive explosion.  In contracting with Scaffolding, ABC did not undertake a particular responsibility to workers employed by Allied, beyond accepting that ABC should provide a competent contractor to erect scaffold…

In my opinion, the matters to which I have referred all suggest quite strongly that this is not a case in which the duty of care that ABC owed to Mr Henry was one which required it to ensure that reasonable care was taken by Scaffolding when actually erecting scaffold for the employees of Allied while working on the premises on ABC.  Accordingly, I do not accept the submission that ABC is liable on the basis that it owed a duty to ensure that reasonable care was taken in the erecting of scaffolding.[40]

Statutory Liability

The statutory duties that employers owe independent contractors are set out in section 19 of the Occupational Health, Safety and Welfare Act 1986 (SA) (“the Act”):

Section 19

Duties of employers

19.     (1) An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular:

(a) shall provide and maintain so far as is reasonably practicable:

(i) a safe working environment;

(ii) safe systems of work;

(iii) plant and substances in a safe condition; and

(b) shall provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and

(c) shall provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.

Maximum penalty:

For a first offence – division 2 fine*

For a subsequent offence – division 1 fine**

Under section 4 of the Act:

Section 4

Interpretation

(2)      For the purposes of this Act, where a person (”the contractor”) is engaged to perform work for another person (” the principal”) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, shall be deemed to be employed by the principal but the principal’s duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.

The effect of section 4(2) is that it deems contractors to be employees in relation to matters:

(a)      over which the employer has control; or

(b)      would have control but for a contrary agreement between the employer and the contractor.

Actions commenced under section 19 are criminal prosecutions; the prosecution must prove each element of an offence charged beyond reasonable doubt.

The most recent cases that deal with the issue of contracting and occupational health and safety need to be seen in the light of the seminal judgments that have shaped the application of the law in this area.  It is useful to consider these decisions before turning to the latest case law.

The Cases

Seminal Decision No 1

Arrowcrest Group Pty Ltd v Stevenson[41]

This case is authority for the proposition that the essence of the offence created by section 19 arises from putting a worker at risk, rather than any injury which may have been caused.  Once that risk has been established, the prosecution does not need to prove, as an essential element of the offence, precisely how that risk became evident and caused a particular injury.[42]

Seminal Decision No 2

CSR Ltd t/as CSR Wood Panels v Stevenson[43]

This was a prosecution for a breach of section 19(1).  The Full Court of the Supreme Court of South Australia upheld the findings of the Industrial Magistrate regarding the construction of the onus of proof and elements of the offence created in section 19(1).

The relevant findings were:

• The section requires proof beyond reasonable doubt.
• The onus is always upon the complainant to establish each of the elements of the offence beyond reasonable doubt and also to disprove any reasonable hypothesis consistent with innocence.

The elements of the offence required to be established were held to be:

1. that the defendant was an employer;
2. that the defendant employed the worker on the date of the incident;
3. that in the course of its work, the defendant required the worker to do the work particularised;
4. that the work entailed a risk to the health or safety of the worker arising from the system of work employed;
5. that there was one or more measures that the employer did not take which, had it or if they had been taken, would have eliminated or reduced that risk to the worker’s health and safety; and
6. that measure or those measures was or were reasonably practicable in the time stipulated in the particulars and the circumstances revealed by the evidence.[44]

Seminal Decision No 3

Stevenson v Pasminco Metals (B.H.A.S.) Pty Ltd[45]

This case was heard in the Industrial Relations Court and the decision is that of Mr Cunningham, Industrial Magistrate.  His Honour’s relevant findings were:

• A charge for an offence under section 19(1) must necessarily take the positive words of that section and cast them into a negative form.
• The prosecution bears the onus of proving every necessary element of the offence beyond reasonable doubt.
• Section 19 does not create an offence of strict liability, dependent solely on the occurrence of an injury to a worker; injury to a worker is not an essential ingredient of the offence nor is the occurrence of an injury sufficient in itself as evidence of the commission of an offence.

Seminal Decision No 4

Softwood Holdings Ltd v Stevenson[46]

In this case before the Full Court of the Supreme Court, the appellant argued that the general presumption of mens rea is an essential ingredient of section 19.  The Court held that the general presumption of mens rea is displaced by negligence as the criteria for liability in section 19, as no subjective state of mind is an essential ingredient of the offence.

Seminal Decision No 5

Complete Scaffold v Adelaide Brighton Cement[47]

The Facts

As set out above.

The Decision

As to the breach of statutory duty, the Chief Justice held:

The first submission on this aspect of the matter is that ABC is to be treated as the employer of Mr Henry, by virtue of s 4(2) of the OHSW Act….

We were informed by counsel that there are no cases which throw any light on the scope of s 4(2).  It is a provision which I find puzzling.  The submission is simply that Allied was engaged to perform work for ABC “in the course of a trade or business carried on by” ABC and accordingly as Mr Henry was a person employed by Allied to carry out the work, he is deemed to be employed by ABC.

The maintenance work carried by Allied was done to facilitate the conduct by ABC of the trade or business that it carried on at its plant.  ABC needed to do the work to carry on its trade or business.  Carrying out maintenance work on its premises is something done by ABC as part of its trade or business, and in a sense in the course of that trade or business.  But if that suffices for the purposes of s 4(2), then whenever a person engaged in trade or business employs a contractor to do work that advances or facilitates that trade or business, the principal will be a deemed employer of any worker employed or engaged by the contractor.  On this approach a firm that contracts with a contractor to clean its offices, will be a deemed employer of the cleaners.  A business that retains an accountant for accounting advice, or a solicitor for legal advice, will be a deemed employer of the accountants and solicitors who work in those firms.  A shop owner who contracts with an electrician to install an electrical fitting in the shop will be a deemed employer of any electrician employed by the contracting electrician.  I give these examples merely to illustrate the wide reach of the suggested meaning of the provision.  Of course, one must not overlook the limitation found in the latter part of s 4(2), and the need to consider the effect of the operative provisions of the OHSW Act.  Nevertheless, allowing for all that, the suggested scope is so wide as to make me think that such a meaning could not have been intended.

But, in the end, I have been unable to identify a more limited meaning that fits with the words of the provision.[48]

So, His Honour concluded that the work that Allied did was done to enable ABC to continue to conduct its trade or business, and so does appear to be done in the course of ABC’s trade or business.  The Chief Justice continued:

The statutory expression is sufficiently imprecise to provide no firm criterion for a more limited operation to be given to the provision.  Accordingly, with some hesitation and with some unease about the implications of the decision, I accept the submission that Mr Henry is to be deemed for the purposes of the OHSW Act to have been employed by ABC.

Nevertheless, in my opinion ABC was not in breach of an obligation owed by it to Mr Henry under s 19(1) of the OHSW Act. … as a deemed employer ABC has limited duties under the Act.  Mr Henry’s injury resulted from a casual act of negligence by a scaffolder who put two planks in place, without making adequate enquiry as to how they would be used, and without considering the risk of the planks shifting.  Mr Henry was injured as a result of carelessness in the course of a matter over which ABC had no control.

“Control” in s 4(2) of the OHSW Act should be read as referring to actual control, that is to things which the deemed employer is managing or organising.  Unless s 4(2) is limited in this way, its reach would be very great.  Control over this task rested with Scaffolding, as the expert contractor hired to perform the work.  Nor was the placement of scaffolding something over which ABC would have had control “but for some agreement to the contrary between [ABC] and [Allied]“. … On the evidence, ABC did “ensure so far as is reasonably practicable” that Mr Henry was safe.  The arrangements that it made, and the precautions that it took before work began, were all that it was reasonably practicable for ABC to do, short of itself supervising Allied and Scaffolding in all the details of the performance of their work.  I cannot think of any precaution that ABC should have taken, which one would regard as something that was reasonably practical, that is likely to have prevented the accident occurring.  I accept that the duty imposed by s 19(1) is a higher duty than is imposed at common law, but it is not an absolute duty.

… it was not reasonably practicable for ABC to exercise supervision at the level that would have been required to prevent this accident occurring.[49] (Emphasis added).

In summary, ABC did not exercise the relevant level of control such that statutory liability could not be imposed on them.

Recent Cases

Case No 1

Moore v Fielders Steel Roofing Pty Ltd[50]

This case involved the meaning of “employer” in the deeming provision of section 4.

The Facts

Mr Holmes was operating a metal press at the defendant’s factory when his fingers were caught in the press.  Mr Holmes was placed in the defendant’s factory by Select Staff.

The complaint against the defendant was that it failed to ensure so far as was reasonably practicable that its employee was, whilst at work, safe from injury and risk to health and, in particular:

(a) failed to provide and maintain so far as was reasonably practicable a safe system of work (section 19(1)(a)(ii)); and

(b) failed to provide such information instruction training and supervision as were reasonably necessary to ensure that the employee was safe from injury and risks to health (19(1)(c)).  (Emphasis added)

The Decision

Industrial Magistrate Ardlie held that Select Staff was the actual (or common law) employer of Mr Holmes and that they placed him with the defendant, the “host employer”.[51] Referring to the decision in Complete Scaffold, His Honour concluded that the relationship between the parties in that case (that is, one principal, two contractors), was not the relationship between Select Staff, Mr Holmes and the defendant.  However, His Honour then referred to the wording of section 19, namely the phrase “employed or engaged”:

A necessary corollary to the Objects of the Act … would be to extend the operation of the Act and the protection it affords employees to any situation in which an employee does work pursuant to the contract of employment irrespective of the location in which or the identity of the person for whom, the work is done.  In the absence of a provision such as this it would seem to be relatively simple to avoid the obligations established by s 19. It is to be noted that the definition of “employee” reflects a like line of interpretation and clearly envisages a like level of protection for the employee.

My research indicates that the argument advanced by counsel for the defendant has not been put forward on a previous occasion. Whilst there is some attraction to the argument I find that the definition of employer which is set out above includes the situation that prevails here. The defendant was an employer “for whom work is done by an employee (Troy Holmes) under a contract of service” the parties to the contract of service being Troy Holmes and Select Staff. Further s 19(1) itself refers to a relationship beyond that of employer and employee whereby it states:-

“…an employer shall, in respect of each employee employed or engaged by the employer…”

Referring again to the elements that the prosecution must prove I find that the defendant was an employer at the material time and for the reasons set out above it employed for the purposes of the Act Troy Holmes the employee named in the complaint.[52]

His Honour reached the conclusion that at all material times, the employer employed Mr Holmes as an employee within the meaning of section 4.

As to the breaches of section 19, His Honour made the following findings:

• Mr Holmes had no prior experience in working a press.
• The employees of the defendant did not ask Mr Holmes any questions about his experience of working in a factory or on a press.
• There was no written material regarding the operation of the press.
• The training provided was cursory and inadequate, “[i]t was at best superficial”[53].
• There was nothing in writing regarding the danger of placing fingers in the press while working the machine.
• Little emphasis was placed on work instructions that were given.
• Verbal and practical demonstrations were of limited duration.
• The training was The employer made only periodic observations, as opposed to undertaking actual supervision.
• Mr Holmes’ age, inexperience and the type of work involved required continuing supervision

Thus, the employer was found to have breached section 19.

Case No 1 (on appeal)

Fielders Steel Roofing Pty Ltd v Moore[54]

This was a Single Judge Appeal of the above decision.  The central issue was the meaning to be attributed to the word “engaged” in section 19(1).

His Honour Senior Judge WD Jennings agreed with the submissions made by counsel for the respondent namely that:

• Section 19 is concerned with the obligations of employers with respect to employees and contractors and to not categorise the obligations as suggested by the Industrial Magistrate would leave a gap in the coverage of the Act.[55]
• The word “engaged” is used in section 19 suggests that the legislative intent was to make coverage as broad as possible and to have regard to different forms of work relationships and arrangements.[56]

His Honour continued:

… “engaged” is a word with a meaning highly dependent upon the context in which it is used. … A consideration of the manifold meanings to the word is supportive of the learned Industrial Magistrate’s approach and findings and [counsel for the appellant’s] submissions, ie that its use in s 19(1) should not be regarded as signifying Parliament’s intention to use it to identify or be restricted to a relationship with some specialised or limited legal content. …

Parliament in my view is wanting to protect those workers who have little or no control over the safety of the premises and environment in which they work.  Had Parliament wished to restrict the operation of s 19(1) to only those workers subject to formal legal relationships with the persons for whom they do the work, then it would have said so.[57]

His Honour concluded that clearly Mr Holmes was “engaged” by the employer.[58]

Case No 2

Moore v Adelaide Brighton Cement[59]

The Facts

This was a prosecution for alleged breaches of section 19(1), namely that the employer:

• failed to provide and maintain so far as was reasonably practicable a safe system of work (19(1)(a)(ii)); and
• failed to provide such information instruction training and supervision as were reasonably necessary to ensure that the employee was safe from injury and risks to health (19(1)(c)).

The defendant owned a ship which was used to transport limestone.  During mooring, a cable on the ship broke necessitating repair work.  The defendant engaged an independent contractor to assist in replacing the broken cable.  One of the employees of the independent contractor was fatally injured when he was struck by a cable during the repair operation.

The Decision

It was held that the relationship between the defendant, the independent contractor, and the independent contractor’s employees fell within the scope of the deeming provision.  However, the defendant was not managing or organising the repair work.  The Industrial Magistrate found that the evidence clearly showed that the independent contractor’s role was to assess, organise, resource, and undertake the repair work in its entirety.  This was not a situation whereby the contractor supplied labour only.  The complete control of the repair work was undertaken by the independent contractor, as an expert contractor hired to perform the work and therefore the defendant did not have actual control over the repair work as contemplated by s4(2) of the Act and thus was not liable.

The next two cases are prosecutions that do not involve independent contractors but they are useful as a guide to the approach the courts will take to breaches of section 19.

Barnett v Keogh[60]

The Facts

An employee of a professional cleaner was using petrol (from an open bucket) as a solvent to clean an exhaust canopy situated above a stove in the kitchen at a hotel.  Petrol spilled on a pilot light causing an explosion and life threatening injuries.

The employer pleaded guilty to three charges, including one charge under section s19(1), namely that he failed to provide:

• a safe working environment (s19(1)(a)(i));
• a safe system of work (s19(1)(a)(ii)); and
• information, instruction, training and supervision as was reasonably necessary to ensure that the employee was safe from injury and risks to his health (s19(1)(c)).

The Decision

Industrial Magistrate Hardy commented that “the accident occurred in the most obvious of circumstances” and the permission of an open bucket of petrol near the stove was “indescribably foolish”.[61] The Industrial Magistrate recorded a conviction and imposed a penalty of $25,000.

Baker v Forwood Products Pty Ltd[62]

The Facts

An employee was directed by his employer to assist a contractor to dismantle, inspect and refurbish a turbine which involved working with an acidic solution containing hydrochloric acid.  After mixing the solution, the employee was severely injured when an explosion occurred as a result of the inappropriate proportions of ingredients used in the acid solution.

The employer pleaded guilty to an offence under section 19(1), namely that it failed to provide:

• a safe working environment (S19(1)(a)(i));
• a safe system of work (s19(1)(a)(ii)); and
• information, instruction, training and supervision as was reasonably necessary to ensure that the employee was safe from injury and risks to his health (s19(1)(c)).***

The Decision

It was found that the employee had no experience, training or knowledge of working with acidic solutions.  The employee received no training from either his employee of the employee of the contractor as to how to go about the task.  The employee also did not receive any instruction or advice as to appropriate protective clothing.  Further, the employer did not seek any information from the contractor as to how the turbine was to be dealt with and thus what risks the employee might have been exposed to.

Industrial Magistrate Hardy found that the defendant’s culpability was clear, “[i]t failed to safeguard its employee’s health and safety by inadequate investigation, instruction and supervision”.  And further, “[l]ike so many of these matters before this court the accident … was avoidable by simple, routine and obvious means.”[63]

However, the Industrial Magistrate also took into account that this incident stood in isolation in the scheme of the defendant’s safety record, that the company had suffered financially, and had shown a high level of contrition.  In addition, the Industrial Magistrate noted that the incident was not a result of some form of regular practice employed by the defendant, it was not a practice with which the defendant was familiar, in fact, such procedures did not usually take place on the employer’s premises.

His Honour concluded, that in terms of deterrence the penalty could be minimised although the penalty must still be sufficient to draw attention to health and safety issues.[64]

A conviction was recorded and a fine of $17,000 imposed.

The Interstate Situation

The Australian occupational health and safety statutes[65] on the whole, fall into two categories:

Those in which an independent contractor is “deemed” to be an employee in relation to matters:

(a)  over which employer has control; or

(b)  would have control but for contrary agreement between employer and contractor.

The Victorian, South Australian, Western Australian, Tasmanian, and Commonwealth Acts all contain ‘deeming’ provisions.

Secondly, there are those statutes in which an independent contractor is owed the same duty as other persons who are not employees (as in the New South Wales, Queensland, and ACT’s statutes).  However, in Queensland special provisions apply to construction sites.

Not falling into either category, the Northern Territory’s Act covers ‘workers’ which are defined any natural person with whom an employer has a relationship.[66]

Penalties vary considerably between States and Territories, the highest being in New South Wales where the maximum penalty for a first offence is $550,000 for a corporation and $55,000 for any other person.  For a subsequent offence, a corporation can receive a maximum penalty of $825,000, and any other person, $82,500 and/or two years imprisonment.[67]

The Commonwealth, Victorian, South Australian, West Australian, Tasmanian, and to some extent, the Northern Territory’s provisions deem contractors and their employees to be ‘employees’ for the purposes of the respective Acts.  However, these provisions do not extend the employer’s duty to sub-contractors hired by a contractor, or to situations in which a self-employed person engages a contractor.[68]

In addition, criminal liability for occupational and safety violations also exists, however, so far this is only the case in one jurisdiction.  Sections 49C and 49D of the Crimes Act 1900 (ACT) creates an offence of industrial manslaughter.

It has been suggested that across Australia, the OH&S statutes need to expressly recognise modern work relationships and particularise more clearly the different forms of work relationships that will be covered so that, for example, contractors of contractors do not slip through the legislative net.[69]

Tips For Employers and Contractors

Don’t allow this…

That said…

I felt the inclusion of a section of this paper on tips for employers and contractors as to how to avoid occupational health and safety violations is important for a number of reasons:

• Given the numerous common law and statutory duties that exist, it can be enormously difficult to decipher what legal rules mean in terms of everyday practice.
• Similarly, most employers would like to do everything in their power to avoid costly criminal prosecutions and damages claims.
• Obviously, most employers would like to avoid injury to themselves, their employees and contractors. important

This part of the paper is not intended to be an exhaustive list, but it gives an outline of the safety record of contractor-based industries; the complexity of contracting relationships that can exist; the numerous OH&S hazards that can present at any given worksite; and tips as to how to overcome some of these difficulties and avoid breaches of OH&S duties.

A useful starting point is to comment that “[i]ndustries that predominantly employ contractors generally have a poor safety record.”[70] Thus it is important that employers and contractors alike consider occupational health and safety issues as a priority, particularly given the findings of studies such as those mentioned in the passage below:

… there is both international and Australian evidence which indicates that self-employed workers are far more likely to be killed at work than their employed colleagues and that the industries and occupations where self-employment and subcontracting are most prevalent (such as farming, timber-getting, road transport, building and construction, and fishing) are amongst the most dangerous.  In addition, a growing number of studies have linked subcontracting to unsafe work practices or to increased OHS risks…[71]

Adding to the propensity for poor safety procedures is the fact that many contractors are engaged as just one of a number of independent contractors all working on the same project at once.  This can result in confusion regarding responsibilities and control strategies, and reducing collective action in regard to occupational health and safety issues.[72]

The following figure illustrates the complexity of contractual relationships that may exist, for example, on a building site:[73]

In addition to the complex relationships between parties that may exist at any given worksite, there is also a complexity of OH&S issues that will face any one employer,

such as those listed in the following tables:[74]

In light of the complex relationships that exist and the numerous hazards that are present in industries where contractors are prevalent, it is useful to consider certain information, hints and tips as to how to avoid occupational health and safety violations when using contractors.  The following table shows the sliding scale of best to worst practices for controlling occupational health and safety hazards:[75]

The National Occupational Health and Safety Commission has published a useful reference for employers and contractors alike (see Schedule 1). The guide suggests that in order to successfully manage occupational health and safety issues, controls should be in place at the four major stages of the contracting process:

• writing tender and contract specification;
• evaluating tenders;
• pre-commencement planning of work, and
• on-site control and monitoring.

The Commission notes that special attention needs to be paid to dangerous activities, and also to contracts of short duration and these can easily slip through an occupational health and safety management system.

As to the assessment of contractors: where tender prices vary by more than 10%, close scrutiny should be given to the tender – a substantially cheaper quote should be treated with caution.[76]

In addition, there are a number of common mistaken assumptions often held by employers:[77]

• OH&S responsibilities can be delegated to other people, the cases clearly show that there are certain duties which employers cannot delegate.
• Contractors are responsible for their own safety.
• Using an expert contractor removes any OH&S responsibility.  Although this may be the case in certain tasks over which the employer does not have control, it should not be assumed that this will automatically be the case.

As to how to achieve best practice, here are some tips…[78]

• It is the employer’s duty to provide a safe system of work.
• Employers should ensure they only select contractors who they accept will be able to perform the work safely.  Information regarding the contractors’ previous OH&S record, safety work plans, and safety management system could all be requested with the tender.
• After the tenders have been submitted, and the final contract is being negotiated, certain OH&S conditions should be included in the contract.  For example, a condition specifying the employer’s current OH&S policies and procedures and stating that these must be complied with as part of the contract.  Compliance procedures and penalties for non-compliance with OH&S requirements should also be terms of the contract.
• In addition, before commencing the work, it would be timely for the contractor to discuss with the employer the manner in which the work will be undertaken.
• It is important to bear in mind that the overall coordination of contractors is the responsibility of the employer.  The relationship between contractors, their employees and the other workers at a site should be clearly specified and managed.
• The exact type, amount and level of supervision the employer is going to provide must be given serious consideration in light of the facts and degree of hazard the contractors and other employees may be exposed to.
• The employer’s current OH&S system should be explained to the contractor.
• Contractors should be told and expected to strictly observe procedures such as accident reports, emergency evacuation procedures, and safety rules.

Concluding Comments

The employer needs to take responsibility in terms of supervision and control of the risks that contractors are exposed to or that contractors expose others to.  A workplace should be safe for all who enter it, irrespective of what tasks are being performed or which entity is performing them.[79]

It is important to bear in mind that “a court of law is far more likely to substantially increase a penalty for those who have no system of minimising workplace hazards over those who can demonstrate that they have at least attempted to do so.”[80]

The cases referred to above clearly indicate the possibility that an employer which engages a contractor might be itself liable for the negligent acts or omissions of that contractor – both in a civil action at common law and criminally for breaching the OH&S legislation.

Processes and procedures are available to minimise these risks – sometimes they are quite simple.

[1] Thompson, “Contractors: OHS legal obligations” (2000) 16(6) Journal of Occupational Health and Safety 493 at 493.

[2] I should pause here to note a definitional issue.  In this paper I generally use the term “employers”; by that I mean principals.  While a contractor could have employees itself and thus be an employer in its own right, for the purposes of this paper the term “employer” refers exclusively to principals. Here we are addressing the issue of the circumstances in which an employer – the principal – is liable for acts or omissions of its contractors – or perhaps equally importantly, of employees of its contractors.

[3] McKendrick, “Vicarious Liability and Independent Contractors – A Re-examination” (1990) 53 Modern Law Review 770 at 784.

[4] Johnstone, “Paradigm Crossed?  The Statutory Occupational Health and Safety Obligations of the Business Undertaking” (1999) 12 Australian Journal of Labour Law 73 at 75.

[5] See Phegan, “Employers’ Liability for Independent Contractors in Tort Law” (2000) 4 The Judicial Review 395 at 395-396; and McKendrick, “Vicarious Liability and Independent Contractors – A Re-examination” (1990) 53 Modern Law Review 770 at 772.

[6] Phegan, “Employers’ Liability for Independent Contractors in Tort Law” (2000) 4 The Judicial Review 395 at 395-396.

[7] John Keeler, Adjunct Associate Professor, University of Adelaide Law School

[8] (1984) 154 CLR 672.

[9] At 678, per Mason J.

[10] At 677-678, per Mason J

[11] At 687-688, per Mason J.

[12] See McKendrick, “Vicarious Liability and Independent Contractors – A Re-examination” (1990) 53 Modern Law Review 770 at 774.

[13] (1984) 154 CLR 672 at 687.

[14] (1986) 160 CLR 16.

[15] At 31, per Mason J.

[16] At 47, per Brennan J.

[17] At 33, per Mason J.

[18] McKendrick, “Vicarious Liability and Independent Contractors – A Re-examination” (1990) 53 Modern Law Review 770 at 778.

[19] As above.

[20] McKendrick, “Vicarious Liability and Independent Contractors – A Re-examination” (1990) 53 Modern Law Review 770 at 774.

[21] At 29, per Mason J

[22] As above; Honeywill & Stein Ltd v Larkin Brothers Ltd (1934) 1 KB 191; Matania v The National Provincial Bank Ltd (1936) 2 All ER 633, at 645-646; Salsbury v Woodland [1970] 1 KB 191 at 338, 345, 348; Hughes v Percival (1883) 8 AC 443, at 446-447; Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd (1921) 2 AC 465, at 476-477.

[23] (1994) 179 CLR 520.

[24] At 560, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.

[25] Phegan, “Employers’ Liability for Independent Contractors in Tort Law” (2000) 4 The Judicial Review 395 at 411.

[26] Phegan, “Employers’ Liability for Independent Contractors in Tort Law” (2000) 4 The Judicial Review 395 at 412.

[27] (1997) 188 CLR 313.

[28] Phegan, “Employers’ Liability for Independent Contractors in Tort Law” (2000) 4 The Judicial Review 395 at 407.

[29] (1997) 188 CLR 313 at 332-333.

[30] (1997) 188 CLR 313 at 397-404.

[31] (1984) 154 CLR 672 at 688.

[32] [2001] HCA 44 (9 August 2001)

[33] At paragraph 36.

[34] See also the decision of the Full Court on 17 September 2004 in The Commissioner of State Taxation v The Roy Morgan Research Centre Pty Ltd [2004] SASC 288 where it was held that despite an agreement between the company and interviewers which stated that the interviewers were independent contractors, the company had the level of control of an employer and could not designate the type of work relationship.  It was held that the interviewers were employees for the purposes of the Taxation Administration Act 1996 (SA).

See also the decision of the Supreme Court (In Banco) in Lenzoot Haulage Pty Ltd v Sinclair (1986) 42 SASR 506 where one of the questions before the court was: was the plaintiff a “worker” for the purposes of the Workers Compensation Act 1971 (SA).  King CJ, with whom White J agreed, said (at 514) that the category of relationship that exists between parties “is not determined by the label which the parties choose to place upon it.”

[35] (1998) 70 SASR 414.

[36] At 423, per Matheson J.

[37] Although His Honour quotes at length from Brodribb before reaching his conclusion, it is difficult to see how that case has applicability to Le Cornu.  Le Cornu did not involve a number of contractors working together and thus co-ordination by Le Cornu was not an issue.  Furthermore, His Honour notes that Le Cornu was not supervising the activities but Brodribb held that ongoing supervision was not required.

[38] [2001] SASC 1999 (18 June 2001)

[39] At paragraph 36, per Doyle CJ.

[40] At paragraphs 42, 43 and 44, per Doyle CJ.

* Under the Acts Interpretation Act 1915 (SA) s28A a division fine is a fine not exceeding $40,000.

** Under the same legislation, a division 1 fine is a fine not exceeding $60,000.

[41] (1990) 57 SAIRC 368

[42] At 373-374.

[43] (1995) 184 LSJS 204.

[44] (1995) 184 LSJS 204 at 205.

[45] [1996] SAIRC 20 (22 March 1996)

[46] (1996) 188 LSJS 482.

[47] [2001] SASC 1999 (18 June 2001)

[48] Paragraphs 49 to 52, per Doyle CJ.

[49] At paragraphs 54 to 57, per Doyle CJ.

[50] [2003] SAIRC 32 (30 May 2003)

[51] At paragraph 15.

[52] At paragraphs 20, 21 and 22.

[53] At paragraph 82.

[54] [2003] SAIRC 75

[55] At paragraph 31.

[56] At paragraph 33.

[57] At paragraphs 40 and 41.

[58] The decision in this case would appear to be inconsistent with the decision of the Full Supreme Court in Mason & Cox v McCann [1999] SASC 544, a decision counsel for the appellant sought to rely on in Fielders as it involved an interpretation of a like provision in the Workers Rehabilitation and Compensation Act 1986 (SA).  But His Honour concluded that “there is always a difficulty in using or relying upon the interpretation of a word or words in one piece of specialist legislation to elucidate the meaning of that word or those words in another piece of equally specialist legislation.”

[59] [2003] SAIRC 69

[60] [2000] SAIRC 10 (18 May 2000)

[61] At paragraph 8.

[62] [2000] SAIRC 16 (27 June 2000)

*** The same parts of s19(1) were prosecuted in Barnett v Keogh.

[63] At paragraph 28.

[64] At paragraph 27.

[65] These statutes are:

Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth)

Occupational Health and Safety Act 1983 (NSW)

Occupational Health and Safety Act 1985 (Vic)

Workplace Health and Safety Act 1995 (QLD)

Occupational Health and Safety Welfare Act 1986 (SA)

Occupational Safety and Health Act 1984 (WA)

Workplace Health and Safety Act 1995 (Tas)

Work Health Act 1986 (NT)

Occupational Health and Safety Act 1989 (ACT)

[66] Work Health Act 1986 (NT) s3.

[67] Occupational Health and Safety Act 1983 (NSW) s51A.

[68] Johnstone, “Paradigm Crossed?  The Statutory Occupational Health and Safety Obligations of the Business Undertaking” (1999) 12 Australian Journal of Labour Law 73 at 91.

[69] Johnstone, “Paradigm Crossed?  The Statutory Occupational Health and Safety Obligations of the Business Undertaking” (1999) 12 Australian Journal of Labour Law 73 at 111.

[70] Winder “Contractors and the use of hazardous substances” (2000) 16(6) Journal of Occupational Health and Safety 535 at 535.

[71] Mayhew and Quinlan “The management of occupational health and safety where subcontractors are employed” (1997) 13(2) Journal of Occupational Health and Safety 161 at 162.

[72] As above at 163.

[73] Figure 3 extracted from Winder “Contractors and the use of hazardous substances” (2000) 16(6) Journal of Occupational Health and Safety 535 at 542.

[74] Tables 1 and 5 extracted from Trethewy et al “Improved hazard identification for contractors” (2000) 16(6) Journal of Occupational Health and Safety 507 at 511 and 516.

[75] Figure 1 extracted from Trethewy et al “Improved hazard identification for contractors” (2000) 16(6) Journal of Occupational Health and Safety 507 at 511 and 517.

[76] Miranda “Improving contractor safety” (2000) 16(6) Journal of Occupational Health and Safety 467 at 468.

[77] Extracted from Thompson, “Contractors: OHS legal obligations” (2000) 16(6) Journal of Occupational Health and Safety 493.

[78] Extracted from Crittall and de Plevitz “Best practice in managing contractors: the occupational health and safety obligations of principals” (1997) 13(4) Journal of Occupational Health and Safety 353.

[79] As above, at 360.

[80] Trethewy et al “Improved hazard identification for contractors” (2000) 16(6) Journal of Occupational Health and Safety 507 at 508.

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