Plaintiff v Defendants

2 Regulation 13 of those regulations provides in sub-regulation (1):

"An employer must ensure that any task undertaken or to be undertaken by an employee involving hazardous manual handling is identified."

Hazardous manual handling is defined in sub-regulation (2) and the regulation contains a sub-regulation (3) which it is not necessary to set out for present purposes.

"If a task involving hazardous manual handling is identified in accordance with regulation 13, an employer must ensure that an assessment is made to determine whether there is any risk of a musculoskeletal disorder [musculoskeletal disorder is defined in the regulations] affecting an employee occurring as a result of that task."

"An employer must ensure that any risk [risk is a defined term] of a musculoskeletal disorder affecting an employee occurring (a) is eliminated, or (b) if it is not practicable to eliminate the risk is reduced so far as is practicable."

5 The second defendant's point is a short one. It contends that it is not the employer for the purposes of these regulations and that the plaintiff is not the employee or an employee for the purposes of these regulations.

6 The Occupational Health and Safety (Manual Handling) Regulations 1999 were made pursuant to the provisions of the Occupational Health and Safety Act 1985. That Act defines "employee" to mean:

"A person employed under a contract of employment or under a contract of training but does not include a person participating in an approved program of work for unemployment payment under the Commonwealth Social Security Act 1991."

"A person who employs one or more other persons under contracts of employment or under contracts of training."

8 The objects of the Occupational Health and Safety Act 1985 are set out in s 6. Those objects include objects:

"(a) To secure the health and safety and welfare of persons at work;

(b) to protect persons at work against risks of health or safety;

(c) to assist in securing safe and healthy work environments;

(d) to eliminate at the source, risks to health, safety and welfare of persons at work."

9 Section 23 of the Interpretation of Legislation Act provides:

"Where an Act confers power to make a subordinate instrument, expressions used in a subordinate instrument made in the exercise of that power shall, unless the contrary intention appears, have the same respective meanings as they have in the Act conferring the power as amended and in force for the time being."

10 The expressions "employer" and "employee" are not defined in the Occupational Health and Safety (Manual Handling) Regulations 1999. No party suggests other than that they bear in the regulations the same meaning as they have in the Act.

11 There are parallels between this case and the case considered by the Court of Appeal of The Queen v ACR Roofing Pty Ltd.[1] In that case the accused company was convicted of failing to provide and maintain a safe working environment contrary to s 21 of the Occupational Health and Safety Act 1985. Section 21 of the Act provided that:

"An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health."

Section 21(3)(a) provided that an employee included "an independent contractor engaged by an employer and any employees of the independent contractor."

12 The accused had been retained to erect and install the roof of a commercial building. The accused contracted with a crane company to lift steel roof sheets onto the building. The crane company contracted with another crane company to carry out that task. While the lift was under way, the crane touched overhead powerlines and a worker was killed.

13 At the conclusion of the Crown case, a no case submission was made on the basis that the accused had not engaged the second crane company and accordingly the deceased worker was not an employee within the meaning of s 21(3)(a) of the Act. The judge dismissed the no case submission and directed the jury that it was open to them to find that the accused had engaged the second crane company through the agency of the first crane company. The accused applied for leave to appeal against that conviction.

14 That application was dismissed by a court constituted by Ormiston, Vincent and Nettle JJA. Their Honours held that the concept of engagement in that case was not limited to privity of contract with the employer; it included the engagement of a contractor under a contract with the employer and also the engagement of a contractor under a sub-contract with some other party in relation to matters over which the employer had control.

15 In the course of giving the principal judgment, Nettle JA, with whom Ormiston and Vincent JJA agreed, said at paragraph 43:

"It is a recognised principle of statutory construction that legislation which is concerned with furthering industrial safety is to be construed so as to give the fullest relief which the fair meaning of its language will allow."

16 In my view, construing the expressions "employee" and "employer" so as to give the fullest relief which a fair meaning of the language of both the Occupational Health and Safety Act 1995 and the regulations made thereunder will allow, encompasses the plaintiff as being an employee within the meaning of the regulations and the second defendant being an employer within the meaning of both the Act and the regulations.

"For the purposes of part IV of the regulations [which includes regulations 13, 14, and 15] an employee includes an independent contractor engaged by an employer and any employees of the independent contractor and the duties of an employer under this part extend to such an independent contractor and employees of the independent contractor in relation to matters over which the employer

(i) has control; or

(ii) would have had control but for any agreement between the employer and the independent contractor to the contrary."

18 Consistent with what was said by the Court of Appeal in The Queen v ACR Roofing, in my view the second defendant falls to be described as an independent contractor engaged by an employer, the first defendant: in this case, being engaged to provide labour and, more specifically, the services of its employee, the plaintiff. Thus, as an additional ground for concluding that the second defendant is bound by regulations 13, 14 and 15 and, indeed, those regulations contained in the regulations that explain the operation of those regulations, I also conclude that those regulations are made applicable by the operation of regulation 11.

19 Accordingly, for these reasons I reject the second defendant's application that the issue of breach of statutory duty in respect of it be taken away from the jury.

[1] [2004] VSCA 215; [2004] 11 VR 187.