R v A C R Roofing Pty Ltd [2004] VSCA 215

R v A C R Roofing Pty Ltd [2004] VSCA 215 - VSCA 2004 case summary — Zoe

[5]

I have had the benefit of reading the judgment to be given by Nettle, J.A. and, for the reasons he states, I consider that this application should be dismissed. Ultimately I have found that the only matter of real difficulty was the proper interpretation to be given to the word "engaged" appearing in sub-s.(3)(a) of s.21 of the Occupational Health and Safety Act 1985. It is sufficient to say that practices adopted in industry and commerce generally for many years have been sufficiently flexible to allow for the use of employees of one company by another, howsoever those arrangements come about. Although paid (ordinarily) by their true employer, they are in most circumstances to a greater or lesser degree under the practical control of another business enterprise. That is why a provision such as sub-s.(21)(3) was passed and the question is only how far should it be taken as extending. Neither the word "engaged" nor the expression "independent contractor" is defined by the Act, so that the Court is required to give each a commonsense meaning for the purposes of this important and wide-ranging section. The reasons given by Nettle, J.A. point to the conclusion that the obligation under s.21 to provide and maintain a safe "working environment" rests on the "employer" who effectively has "control" of the premises, as contemplated by para.(b) of sub-s.(3). There would seem no good reason, having regard to sub-s.(3) and its form and purpose, why the persons who can claim the benefit of s.21 should be confined to those in direct contractual relationship with that occupier of the premises, so long as the person is brought onto the premises for the purposes of the occupier's enterprise and so long as the latter has some control over what that person does. The word "engaged" has had, as Nettle, J.A. has pointed out, a wide variety of meanings over the years according to the circumstances in which it has been sought to be used. It is clearly not confined to arrangements with persons "employed", in the strict sense, nor to those "employed" in the somewhat looser sense as used in relation to the acquisition of the services of an independent contractor. That the word "engaged" has not been lightly used and has been seen by Parliament to have a different meaning from "employ" may be seen from sub-s.(4)(c) of the same section where the expression

[55]

"The Oxford Dictionary, if we concentrate on Part (a) there, the word `engaged'. The Oxford Dictionary defines the word `engaged' in the sense that is relevant here as `binding by a contract or a promise as a hiring or an employment'. Now the [prosecutor] says to you here [that] the circumstances are sufficient to amount to an engagement. [Counsel for ACR's] argument to you is simply, that`s not so, there is no engagement here. They are the employees of James Cranes, not of ACR. Now I direct you as a matter of law that a corporation can engage an independent contractor via an agent. And the [prosecutor] in this instance relies upon the extended definition in this way.... [His Honour then outlined the evidence concerning A.C.R.'s engagement of Associated Rigging and of Associated Rigging's engagement of James Cranes and read out to the jury the questions and answers from Mr Martins' record of interview concluding with Mr Martin's answer that "James Cranes had been cross-hired by our normal crane company as they were unable to do the job." His Honour then continued]... ...Hence as a matter of law I tell you that such cross-hiring is sufficient to satisfy the definition of `engaged' in this instance. Ultimately, members of the jury, this is a question of fact for you...are you satisfied as a fact that that engagement took place and therefore that part of the satisfaction of the extended duty, the first part, you have been satisfied beyond reasonable doubt that there is an engagement? ...Assuming you are satisfied on the evidence that there was an engagement, an engagement through the agency of Associated Rigging, the next aspect you will see in that definition is: `... (b) the duties of an employer under these sub-sections extend to an independent contract and the independent contractor's employees in relation to matters over which the employer had control'. ... [The prosecutor] says to you that the matters - see the word `matters' on that second last line of (b), `in relation to matters over which the employer has control[`], the matters over which the employer, ACR has control are, pursuant to...the contract with the owner company, ...to erect safety mesh at the site...It is submitted by the [prosecutor] to you that the employer, ACR, has control over its contractual obligation, that is, the obligation to erect the safety mesh and insofar as that is concerned, any risks to health and safety brought about by the failure to complete that work is a risk that must rest with ACR. The second matter over which the [prosecutor] says they have control to you is the building of the roof. Again you will see [in ACR's contract with Peter Gibson Developments] that they have contracted to build the roof, the purlins and the gutters. That is ACR. The [prosecutor] says to you, it is not enough in those instances for you [ACR] to say that you have looked after the safety of your workers, you have got to look after the safety of all of the workers who are involved in the erection of a matter that you have control over, that is, you have got control of erecting the roof and you have got to take safety precautions for them. The Act says that an employer in these circumstances must provide for the safety of independent contractors or their employees..."

[63]

"Yesterday, I got to a stage in the end of my directions before we retired for the day, by directing you on the law as it relates to the extended definition of employee under s.21(3)(a) and (b) of the Act and I will ask you to get that out again. That is, p.3 of your documents there, that is of your Act documents, if I can put it that way. I told you that a common element in regard to Counts 1 to 3 against ACR, or in regard to ACR, was the need for you, members of the jury, to be satisfied beyond reasonable doubt that ACR was the employer of King and Reynolds as a result of the engagement of James Cranes and [that] the duties under s.21 extended to matters over which ACR had control. I went through yesterday the circumstances ... which I said in so far as the issue of engagement [was concerned] you would look to, to determine whether that engagement had taken place, and it has been suggested to me that I revisit those circumstances and I intend to do that. This concerns the definition in front of you, [s.21](3)(a), the `employee' includes an independent contractor engaged by an employer and any employees of the independent contractor, so in this instance you have to find beyond reasonable doubt as I said to you yesterday that ACR had engaged James Cranes and the employees of James Cranes, in this case King and Reynolds. Now as I said to you, I explained and put to you the law. It is a matter for you as to whether you find the necessary agency that I put to you, and I said to you, and I say again, as matter of law a corporation can engage an independent contractor via an agent. They can do that no doubt by giving a direct written authority to an agent to say go out and engage someone on my behalf, and we all know that business does not necessarily work like that, written instructions to do things. Business operates in a far more fluid situation. The Crown rely [on that] and say [of] the term `engage' in this case you should be satisfied that the engagement has taken place [in] the following circumstances. Mr Hoare entered into the original contract with ACR for the company that he represented, Associated Rigging, to supply the crane...On the day before, or early on the actual day, that is 29 October 1999, Mr Hoare decided that Associated Rigging cannot do the job. He engaged James Cranes via Mr Kelton [of James Cranes] to do the job, that is supply the crane. He phoned Pam at ACR to advise ACR that he had done that. He has told you in evidence that he had done that before and that it was a standard practice in the industry. Mr Martin, who you are aware is the job supervisor for all of ACR's jobs, had discussions with Palmer and said when the crane was arriving. Now it is a matter for you what you infer from that. If he tells Mr Palmer the crane was arriving about one o'clock it is a matter for you whether you can conclude, and I will take you to the issue of inferences later, but whether you can conclude from all those circumstances that Mr Martin as the supervisor knew about the substitution at that time, and discussed the state of the site with Palmer. Subsequently when the crane actually arrived on site, he had a further discussion with Palmer as to whether the operatives from the crane will go up on to the roof because the roof had not had the safety mesh fixed. Now again you would have to make a decision and determine [in] the circumstances: can you infer from that that he was aware at that time that the James Cranes Pty Limited crane was on site_._ To assist you in regard to Mr Martin's knowledge, you have the record of interview and I read to you the question relevant to that, and he said they had been cross-hired by Associated Rigging. It is a matter ultimately for you in the circumstances to determine whether, firstly, Mr Martin was acting for and on behalf of the company and whether Mr Martin by his actions for and on behalf of the company ratified the appointment of James Cranes made by Associated Rigging, that is the concept of agency, and what I said to you is those are the circumstances that as a matter of law are sufficient, if you found those, to establish an engagement in these circumstances, but I further told you that the actual decision on all of those facts and whether you are satisfied on those facts is a matter for you."

[84]

"2. (1) It shall be the duty of every employer to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all his employees. (2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matter to which that duty extends include in particular- (a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b) arrangements for ensuring, so far as is practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information , instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees; (d) so far as is reasonably practicable as regards an[y place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; (e) the provision and maintenance of a working environment for his employees that is , so far as is reasonably practicable , safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work. (3) Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health an safety at work of his employees and the organisation and arrangements for the time being the statement and any revision of it to the notice of all his employees. (4) [Provides for regulations for the appointment by trade unions of safety representatives] (5) [Provides for regulations for the election of safety representative by employees] (6) [Provides that it is the duty of employers to consult safety representatives] (7) [Provides for the appointment of safety committees]. 3. (1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risk to their health or safety. (2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety. (3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety."

[101]

"I want to take you to the elements which make up each charge and relate each such element to the manner in which the case has been presented by the prosecutor and relate also to you the arguments of defence counsel....You will see at the top of the Act that what we are dealing with is the Occupational Health and Safety Act 1985. You will see there, if I take you to s.21(1) that [it] imposes the general duty which has criminal sanctions put upon it. So that the duty is, as I read out to you, ...[His Honour then read out the sub-sections 21(1) and (2) and continued]...Now, you will see because of the fact that we have only got (a), (b) and (e)...they are the only ones you have to deal with...In so far as (2)(a) is concerned, that talks about a system of work being provided, a safe system of work and that particular section makes up Count 3 against ACR...In s.21(1) you see the second line there, you see this word `practicable', and you go down to (2) and (2)(a), you see the word `practicable` again...The Act assists you with what that word means by defining at the start of the Act... [His Honour then took the jury through the definition of `practicable' in s.4 of the Act and instructed the jury that the prosecution bore the burden of persuading them that there was a more practicable method than was used of giving instructions or providing a safe system of work. After then explaining that the section only applied to an employees and to independent contractors engaged by the employer, and their employees, His Honour continued]... Assuming that you satisfied on the evidence that there was an engagement, an engagement through the agency of Associated Rigging, the next aspect you will see in that definition is: `(a), `employee' includes an independent contractor engaged by an employer and any employees of the independent [contractor]' and then the words used are: `and', so you have got to be satisfied on both aspects, [and then]: `(b) the duties of an employer under [those] sub-sections extend to [such] an independent [contractor] and the independent contractor's employees in relation to matters over which the employer... has control'. Now Mr Priest has put to you that the lift of steel in this instance based upon industry practice was a circumstance over which the crane company, the crew had control alone and the dogman had control of the lift itself. In so far as this issue of control, in so far as the extended definition is concerned, the [prosecutor] puts it to you this way: These matters, the word `matters' in this instance is to be given a wide meaning and it is wide enough to cover any activity or thing in the working environment which might involve a risk to safety and the health of the worker, in this instance, King and Reynolds, assuming you have found firstly that they have been engaged. The [prosecutor] says to you that the matters - see the word `matters' on that second last line of (b), `in relation to matters over which the employer has control', the matters over which the employer, ACR, has control are, pursuant to Exhibit C, one of the contracted items in Exhibit C, that is the contract with the owner company, is to erect safety mesh at the site. It is submitted by the [prosecutor] to you that the employer, ACR, has control over its contractual obligation, that is, the obligation to erect the safety mesh and in so far as that is concerned, any risks to health and safety brought about by the failure to complete that work is a risk that must rest with ACR. The second matter over which the [prosecutor] says they have control ... is the building of the roof. Again you will see in Exhibit C that they have contracted to build the roof, the purlins and the gutters. That is ACR. The [prosecutor] says..., it is not enough in those instances for you [ACR] to say that you have looked after the safety of your workers, you have got to look after the safety of all of the workers who are involved in the erection of a matter that you have control over, that is, you have got control of erecting the roof and you have got to take safety precautions for them. The act says that an employer in these circumstances must provide for the safety of independent contractors or their employees in the making of the roof."

At a glance

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Before

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Judgment (178 paragraphs)

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