Identification of employer under 1987 Act
103 The next question is whether, assuming that Yolarno was the employer under the training contract, the Respondent was nevertheless the "worker's employer" for the purposes of Part 5 of the 1987 Act, concerning common law damages claims. However, if it were the employer for that purpose, it must have been because Yolarno Pty Ltd had supplied the Appellant to the Respondent, so that the Appellant worked for the Respondent. That possibility requires consideration of the provisions of Schedule 1, cl 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act") as to the date of the accident. Clause 1 of Schedule 1 then read:
" 1 Workers lent or on hire
If the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service or apprenticeship, the latter is, for the purposes of this Act, taken to continue to be the employer of the worker while the worker is working for that other person."
104 The next step, which is to connect that provision with Part 5 of the 1987 Act, is to be found in s 2A of the 1987 Act which reads as follows:
"2A (1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as 'the 1998 Act'.
(2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to 1998 Act.
(3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.
3(1AA) In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise."
105 It follows from s 2A(2) (first sentence) that where the 1998 Act provides a definition for the purposes of that Act, the definition must be understood to apply for the purposes of both Acts. It is significant in this context that the definition of "worker" in the 1987 Act was repealed when the 1998 Act took effect. Accordingly, cl 1 of Schedule 1 of the 1998 Act had the effect, in circumstances where it operated, that the provider of labour remained the employer. Importantly, that applied in the circumstances of an apprenticeship as well as an employment contract. It could operate to make the employer under the training contract in the present case the worker's employer for the purposes of Part 5 of the 1987 Act.
106 The question whether it did apply depended on three requirements. The first was that Yolarno be a party to the training contract; the second was that the relationship between the Appellant and Yolarno be properly described as that of "apprenticeship" and, thirdly, the Appellant was "temporarily lent or let on hire" by Yolarno to the Respondent. For the reasons already given, the first condition was fulfilled, Yolarno being "the employer" under the training contract. In relation to the second matter, although question 6 on the application form stated that the type of relationship was a "traineeship", it is clear from the notes to that section that the labels are designed for different regimes operating in different parts of Australia. The content of the agreement was consistent with the existence of an apprenticeship, as it would be understood under the general law. There is nothing in the 2001 Act which provides any significant point of distinction between an apprenticeship and traineeship. There remained the third requirement, namely that of letting or lending on hire temporarily. Because it was part of the Respondent's case that the Appellant worked for it, if Yolarno were indeed the employer under the training contract, there must have been some form of arrangement between them whereby Yolarno supplied the Appellant's services to the Respondent. Clause 1 requires no formalities or particular conditions to be applicable in order for that element to be satisfied. It is more probable than not that an arrangement of that kind existed, impliedly, if not expressly. The absence of such an express agreement was explained by the assumption apparently made by Yolarno and the Respondent as to the relevant relationship. The alternative conclusion is that the Appellant was simply undertaking work for Yolarno, in which case reliance on Schedule 1, cl 1 is unnecessary.
107 This conclusion as to the operation of Schedule 1, cl 1, is consistent with the conclusion reached by this Court in OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193. As the Appellant noted, the correctness of the majority's reasoning (Fitzgerald AJA, Beazley JA agreeing) was the subject of a reservation as to its correctness in National Transport Insurance Ltd v Chalker [2005] NSWCA 62 at [75] (Mason P, Tobias JA and Grove J agreeing); further, in Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126 at [30] Tobias JA (Young CJ in Eq and Brownie AJA agreeing) expressed the view, obiter, that there was "substance" in a submission that OP Industries was wrongly decided and that the reasoning of Meagher JA in dissent was to be preferred.
108 It was not contended on this appeal that OP Industries should be reconsidered. Nor, with respect, do I see anything in the judgments in Kotevski or Chalker which would suggest that reconsideration is necessary. In Kotevski, at [28] the view of Meagher JA, in dissent in OP Industries, was identified in the following terms:
"He was of the view that the effect of the statutory deeming was limited 'to the purposes of this Act' and was intended to assist an injured worker to know which of several potential employers was liable to pay statutory compensation (not common law damages) under the Act. It could not, his Honour said (at 196 [9]):
'be tortured into a provision depriving a worker of the exercise of his common law rights.'"
109 Resolving a choice between alternatives is not often described as a form of torture; this may have been a lapse into "Wilkes-like rhetoric": see Carroll v Mijovich (1991) 25 NSWLR 441 at 455E (Meagher JA). Nor is it clear, except in particular circumstances, why the choice of one party rather than another involves a deprivation of rights. Indeed, rather the contrary: the party most directly responsible for the injury is likely to be that in control of the workplace and not the labour hire company. As a result, the labour buyer is likely to be the party responsible in damages and to be without the constraints imposed by Part 5 on damages recoverable by the injured party. If the reason given by Meagher JA is the basis for doubting the correctness of the decision in OP Industries, it may be seen, in truth, to support a contrary result. Furthermore, it provides no basis for reading down express and unambiguous words referring to "the purposes of this Act", those purposes clearly being multiple and there being no reason to exclude one or more from the scope of the phrase.
110 Of course, a different result may follow from the use of the same phrase in a different context. Thus the provisions of ss 15, 16 and 17 of the 1987 Act, each of which adopts the phrase "for the purposes of this Act" may properly be understood to refer to the purposes of Part 2 of the Act, in which they are found, rather than the Act generally. However, there is no such justification for reading down a phrase of that kind when it appears in a general definition section which one would normally expect to apply, as its language states, to the whole of the Act and its multiple purposes. That approach is consistent with the principle that references to "this Act" are apt to identify the whole of the Act in the form in which it appears from time to time, including after amendment subsequent to the provision in which the phrase is found: see Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276 at 280 (Taylor J).
111 As the Appellant also noted, OP Industries was referred to, with apparent approval, by Kirby J in Klein v Minister for Education [2007] HCA 2 at [45], dealing with an appeal with respect to the Workers' Compensation and Rehabilitation Act 1981 (WA). The majority of the Court did not address the issue, but, given the particular legislative and other circumstances, revoked the grant of special leave. Gleeson CJ would have, like Kirby J, dismissed the appeal. The difficulty which arose in that case was related to an earlier decision of the Full Court of the Supreme Court of Western Australian in Hewitt v Benale Pty Ltd (2002) 27 WAR 91, which had held that a provision of the Act deeming both the principal for whom work was undertaken and the contractor by whom the worker was employed to be the worker's employers "for the purposes of this Act" applied not only to the availability of compensation, pursuant to Part X, concerning insurance, but also for the purposes of Part IV, which imposed constraints on awards of common law damages. Special leave had been refused in relation to a related decision and the WA Parliament had legislated on the basis that Hewitt was correct.
112 On one view, OP Industries was a clearer case than Hewitt, because the definition or deeming provision relied on in OP Industries was in a general Part of the Act. Nevertheless, it may be noted that OP Industries was referred to with apparent approval by Scott J in Hewitt at [45]. In addition, the effect of the Western Australian provision was to limit the damages recoverable from either principal or contractor: for that reason, there was a clearer basis for arguing that the deeming provision should be strictly construed so as not to deprive a worker of rights otherwise than as expressly required: see Bird v Commonwealth (1988) 165 CLR 1 at 9. Nevertheless, the WA Full Court in effect found the language "intractable", to use an expression adopted by McHugh J in the High Court, rejecting an application for special leave to appeal.
113 It may be noted that the equivalent of Schedule 1, cl 1 of the 1998 Act was to be found in the definition of "employer" in s 5 of the WA Act: the general operation of that deeming provision appears to have been accepted as beyond question.
114 It follows that if Schedule 1, cl 1 applied, according to its terms, in the present case, the worker's employer for the purposes of Part 5 of the 1987 Act was Yolarno. The Respondent was not the worker's employer for the purposes of Part 5 of the 1987 Act. Assuming that Yolarno was the employer under the training contract, the same conclusion would follow even if Schedule 1, cl 1, did not apply because either of the second or third conditions referred to above was not satisfied.