WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd

PROSECUTOR Mr P M Skinner of counsel Solicitor: Mr G Phillips LEGAL REPRESENTATIVES: Carroll & O'Dea

DEFENDANT The Hon Mr J J Macken of counsel

JUDGMENT: - 62 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Thursday, 20 September 2001 Matter No IRC 2974 of 2000

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEVEN ROBINS) v LABOUR CO-OPERATIVE LIMITED

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2001] NSWIRComm ...

1 This is a prosecution by Steven Robins, as an inspector of the WorkCover Authority of New South Wales, of Labour Co-operative Limited for an offence against the Occupational Health and Safety Act 1983. The summons charging the defendant alleged that it failed to ensure the health, safety and welfare at work of all its employees, in particular Julie Anne Lister, on 1 July 1998 at the premises of CSR Limited (trading as CSR Timber Products) at Raymond Terrace in the State contrary to s 15(1) of the Occupational Health and Safety Act. On the said date, while operating heavy machinery, Ms Lister was trapped by a rack as it moved past her thereby suffering serious crush injuries to the head, chest and trunk.

2 The summons was in the following terms : The Defendant being an employer at the premises of CSR Limited trading as CSR Timber Products at Masonite Road, Raymond Terrace in the State of New South Wales ("the premises") on 1 July 1998 did fail to ensure the health, safety and welfare at work of all of its employees and, in particular, Ms Julie Anne Lister.

3 The summons particularised the contravention alleged against the defendant in this way : 1. The Defendant, Labour Co-operative Limited, was at all material times a body corporate pursuant to Section 27 of the Co-operatives Act 1992 (NSW) with a registered office at First Floor, 571 Hunter Street, Newcastle West in the State of New South Wales.

At all material times the Defendant operated a labour hire business providing personnel to other employers and businesses.

At all material times, the Defendant employed Ms Julie Anne Lister ("Lister") and had directed Lister to attend the premises of CSR Limited trading as CSR Timber Products ("CSR") at CSR's premises at Masonite Road, Raymond Terrace ("the premises") to be trained and to perform duties as a labourer/non trades. Lister commenced work at CSR on or about 23 June 1998 and worked again on 30 June 1998 and 1 July 1998 at the premises.

The Defendant, pursuant to an arrangement with CSR, conducted the CSR Induction Program for the Defendant's employees who were to be working at the premises.

On 15 June 1998 Lister attended the Defendant's premises for the CSR Induction Program which was conducted by Mr Greg Couper, marketing representative of the Defendant. On 19 June 1998 Lister attended the Workcover accredited Occupational Health and Safety induction at the Defendant's premises, which was conducted by Greg Couper and John Dodd, marketing representatives of the Defendant. Neither training session highlighted the specific hazards associated with presses and/ or automated mobile plant.

"The CSR Timber Products Raymond Terrace Factory, Induction Booklet, New Employee Kit, August 1996" documented the safety induction training provided to Lister on 15 June 1998. At paragraph 23 the document states "Occurrence prevention therefore relies on training people to recognise conditions which have the potential to cause injury to personnel, ie. to recognise HAZARDS and CONTROL the risks" however, the document itself, nor the training provided to Lister identified such hazards.

On 23 June 1998 and 30 June 1998, Lister had worked downstairs at the premises, having been trained in another area. On 1 July 1998, Lister commenced working upstairs, being trained by Mr Dennis Sands, CSR's Press Operator, to be a Back End Operator in CSR's Boardmaking Area.

At no time did the Defendant assess the training provided to Lister to ensure that it was adequate.

At no time did the Defendant take steps to ensure that Lister was being adequately supervised whilst at CSR's premises. There was no employee on behalf of the Defendant or CSR supervising Lister at the premises on the said date nor was the Defendant aware of the details of the work to be required of Lister by CSR at its premises.

The Defendant had provided no information, instruction or training to Lister with regard to the safe operation of presses and/ or automated mobile plant.

Lister had no experience in operating heavy machinery and had no qualifications related to the operation of plant.

At the conclusion of a 12 hour shift on 1 July 1998, Lister would have been classed by CSR as being fully competent to perform the duties of a Back End Operator in the Boardmaking Area, such training being inadequate and not assessed by CSR or the Defendant. 13. On the said date, Lister was about to "spot up" (or align) the wet lap (board) on the Number 4 Press in the Boardmaking Area when Mr Sands initiated the movement of the automated unloading rack. As Lister went to the right side of Press 4, she became trapped by the unloading rack, as it moved past Press 4.

14. In the subject incident, Lister suffered severe injuries including serious crush injury to the head, chest and trunk.

15. Investigations carried out by the Prosecutor revealed that, as at 25 May 1999, Lister had not returned to work on a full time basis and worked 3 days per week for 5 hours each day at the Blackbutt Reserve at Newcastle. Due to the psychological trauma associated with the accident, Lister had been unable to return to the premises.

16. It is alleged that the Defendant, Labour Co-operative Limited, being an employer on 1 July 1998 at the CSR Limited trading as CSR Timber Products premises at Masonite Road, Raymond Terrace in the State of New South Wales did fail to ensure the health, safety and welfare at work of all of its employees and, in particular, Ms Julie Anne Lister, in that: (a) it failed to provide such information, instruction and training to Julie Anne Lister so as to enable Lister to carry out her duties at CSR safely and without risk to her health which included spotting up the wet lap on Press 4 in the Boardmaking Area of the premises. The information, instruction or training provided to Lister with regards to the safe system of work relating to the operations in the Boardmaking Area was insufficient in that the training provided by the Defendant did not highlight the hazards of presses and/ or automated mobile plant. (b) it failed to supervise Lister so as to ensure that Lister was only carrying out duties that she was qualified to perform and not required to carry out duties which were hazardous, without adequate training and supervision, given that Lister had had no previous experience operating heavy machinery and had no qualifications related to the operation of plant. (c) it failed to ensure that Lister was provided with adequate supervision and training by CSR whilst she was at its premises in that it failed to assess the effectiveness of the training or supervision provided by CSR to Lister. 4 The defendant pleaded not guilty. However, through its counsel, the Hon Mr J J Macken, the defendant indicated there was no issue raised by it concerning the circumstances of the accident and the injuries occasioned thereby to Ms Lister. Indeed, at the commencement of the hearing counsel conceded as being established all of the essential elements for a s 15(1) offence, other than that the defendant was the relevant employer of Ms Lister and, even if it were, the circumstances were such that it could not have done anything to prevent the accident occurring. Counsel emphasised, as he said, that "the substantial issue is that she isn't an employee of Labour Co-operative". Thus, three issues emerged for determination: first, the status of the defendant as the employer; second, the causal connection of the defendant with the alleged detriments to safety; and, third, the defence available under s 53 of the Occupational Health and Safety Act. The hearing proceeded on that basis and I too will consider the issues in the order they were raised.

5 The prosecutor, Mr Robins, was a primary witness. It seems that on the day of the incident another inspector, Assistant Principal Inspector Victor Page, investigated the incident and his report and seven photographs of the scene were admitted into evidence through Mr Robins. The photographs greatly assisted me in understanding the evidence given by other witnesses as to the conditions and circumstances of the workplace, including what occurred to Ms Lister. Also tendered into evidence during Mr Robins examination were various other documents which contained information directly relevant to the first issue of employment, as follows - (1) Accident Report dated 7 July 1998 of the subject incident completed by Greg Couper, a marketing representative of the defendant, which stated : · the employer or the person in control was "Labour Co-operative P/L", the present defendant; · Ms Lister was the defendant's employee; · Ms Lister was engaged on "production work" with the job title of "labourer"; · the injuries were occasioned to Ms Lister on 1 July 1998 at 5.00 pm in the "board making press area" when she received the injury of "crushing (injury to upper body, lacerations to back & buttocks)" on the "automatic movement of unloader rack" so that she was thereby "trapped between rack and press"; · three witnesses to the injury or occurrence were identified - Alan Wellings, Denis Sands and David Connelly; and · actions taken to prevent the accident from happening again were stated as "1. Trip wires extended, 2. Alternative operation procedures to be trialled. 3. WorkCover investigation".

(2) Accident Report dated 8 July 1998 completed by John Bennett, Factory Manager of CSR Timber Products, which stated : · the employer or the person in control was "CSR Limited", trading as "CSR Timber Products", · Ms Lister was not an employee of CSR Timber Products; and · the remaining information contained in the report from CSR Timber Products as to the injury, the time and location, witnesses and preventive action taken were in the same terms as contained in the report from the defendant, except that in lieu of the WorkCover Authority investigation it was stated "3. Internal investigation continuing".

(3) The "Labour Co-op Employment Registration Form" was completed and signed by Ms Lister on 11 June 1998 for employment with the defendant at its Newcastle West Branch. The form contained the personal and bank details of Ms Lister necessary for employment; it included her answers to a personal health questionnaire, copy driver's licence and a regime setting out her career objectives, demonstrated abilities, employment history, voluntary work performed, training, education and references. She noted in the form "Denise Randell sent me from CSR for labouring work" and the defendant's staff commented "CSR - Denis Randell sent in". Ms Lister was allocated an employee number (No 2323) and she acknowledged in writing the following statements set out in the form: · "I agree to and understand that Labour Co-op's method of payment for any wages due to me will be deposited into a nominated financial institution". · "I also authorise Labour Co-op to initiate any wage adjustment that may become necessary as a result of any wage payment being outside of my entitlement".

(4) A purchase order from CSR Timber Products to the defendant dated 26 March 1998 and current to 31 March 1999 represented a standing order to the defendant for "labour hire as requested and directed by CSR staff members all rate increases are to be advised in writing addressed to the manager". An earlier letter dated 16 July 1997 from the defendant to CSR Timber Products set out the hourly rates and conditions of labour placement for casual hire, including an AWU Day Worker like Ms Lister; the rates the defendant charged CSR Timber Products for labour hire were approximately 40 per cent higher than the rate of pay the defendant paid to the workers and was an all inclusive rate covering award entitlements, workers' compensation, public risk insurance, payroll tax and superannuation with additional entitlements to be charged at the appropriate rate plus 18 per cent.

(5) An Induction Booklet dated August 1996 from CSR Timber Products styled as a "New Employee Kit", was signed by Ms Lister on 15 June 1998 in acknowledgment that she had "received a copy" and was "satisfied that the contents have been explained to (her) in sufficient detail for (her) to understand". The booklet contained various deletions of certain information which Mr John Bennett, CSR Timber Products' Factory Manager, was said to have deleted and replaced with the appropriate information from the defendant in respect of Ms Lister. The information related to such matters as awards, pay arrangements, superannuation, public holidays, promotion, sick leave, termination of employment, change of address and dependants, clothing issue, share option plan, social club and conditions of employment; workers compensation was noted as being covered by the defendant's insurance and specific aspects applicable to employees of CSR Timber Products as to occupational health service and rehabilitation, safe behaviour involvement, employee assistance programme and training were deleted also from the kit. (6) Signed acknowledgement by Ms Lister dated 19 June 1998 from her file as an employee held by the defendant stating that she had attended "Labour Co-op's Work Cover Occupational Health and Safety Induction Training Programme" and acknowledging receipt of the "Labour Co-op Employee Work Practices and Procedures Information Package".

(7) The said information package so acknowledged by Ms Lister contained the following introduction :

"We welcome you as a new employee of Labour Co-op. To help you understand more about us we would like you to take the time and read the following information.

It briefly explains our background, organisational structure, procedures and work practices." (8) As the information package foreshadowed, it dealt with the stated subject-matters in detail and (but without quoting passages therefrom) it is to be noted that throughout the document in relation to the defendant reference is variously made to "its workers", "our employees", "Labour Co-operative employees", "whilst you are an employee of the Co-operative" and "employees working within our Client's organisations". Specifically in terms of the defendant's training policy, the package noted : "Labour Co-operative recognises its obligation to the Client by providing correctly trained and skilled employees to meet the specific needs of the job. This policy enables Labour-Co-operative employees to share in the responsibility of providing a quality service".

(9) In the procedures section of the said package, the defendant advised Ms Lister so as to assist "in alleviating any problems which may occur whilst you are an employee of the Co-operative" in relation to "Work Availability", "Sick Leave/Absenteeism", "Pay Requirements", "Tickets/Certificates/Licences", "Clothing Allowance" and "Labour Co-op Safety Rules". In relation to the various matters so dealt with, the following extracts are of particular significance : · "The Co-operative will contact you if work is available. If you have not been contacted please contact the office between the hours of 8.30 am and 5.00 pm and confirm your availability". · "If you are unable to work through illness please notify us - we will then notify the client of your absence. In certain circumstances you may contact the client direct but you will need to notify us also in case a replacement is required". · "All Co-operative employees are required to complete and sign a tax declaration form, a superannuation fund application form and a deduction form for weekly pay deductions payable to the appropriate union". · "All pays are electronically transferred to an approved financial institution and are available to you on Thursdays. Your account number must be supplied to the pay office to enable your pay to be deposited". · "It is your responsibility to ensure your time sheet is completed correctly and signed by the client and forwarded to the pay office on time each week". · "You cannot operate machinery, drive a vehicle or direct traffic unless you have current certification". · "All employees receive a weekly clothing allowance (where applicable). ... If you are working on weekly hire for a long period you will be given a clothing issue but you will cease to receive a weekly clothing allowance". · "The objective of these rules (Labour Co-op Safety Rules) is to ensure the health, safety and welfare of all employees. ... Any deliberate breach of these rules may result in disciplinary action." · "Please note that although you are working for another organisation Labour Co-operative is your employer and will be responsible for the payment of Workers Compensation. Therefore it is important we are notified of all injuries and accidents."

(10) A certificate of currency of the defendant's workers' compensation policy of insurance issued by GIO Australia and valid to 30 June 1999 showed that the defendant's estimated wages for that current policy period were $10.7 million.

(11) Ms Lister's personnel record held by the defendant disclosed her personal details and availability for work after noting that "Dennis Randall from CSR sent in". The record shows Ms Lister had the position of "AWU Day Worker CSR Wood Panels" on 23 June 1998 and again on 30 June and 1 July 1998.

(12) Pay slips for Ms Lister from the defendant showed her wages during the relevant period from 22 June 1998 to 5 July 1998, together with superannuation deductions and year-to-date figures. 6 The prosecutor interviewed Ms Lister on 17 February 1999 and she signed a record of the interview which was admitted into evidence. Ms Lister also gave oral evidence. As to the aspect of employment, she said during the interview : Q4. What was the date of your accident? A4. 01.07.98.

Q5. What was the approximate time of your accident? A5. About 4.45 pm.

Q6. By whom were you employed on the 01.07.98, and at what address were you working? A6. I was employed by the Labor Co-operative Pty Ltd. I was working at CSR at Masonite Road, Raymond Terrace.

Q7. What was your position with the Labour Co-operative Pty Ltd on 01.07.98? A7. In training to work at CSR Ltd on a casual basis.

Q8. How long had you held this position? A8. All but three days.

7 How Ms Lister obtained the work at CSR Timber Products, and her introduction to and relationship with the defendant, was the subject of the following further oral evidence by her : Q. You tendered a long and interesting CV when you went there to the company detailing an outline of your work, and before you went to CSR you had a succession of casual and part time jobs over the years? A. Yes.

Q. You were looking all the time for full-time permanent employment? A. Yes.

Q. You know Tony Berrigan and he is a friend of yours and he worked there then? A. Yes.

Q. You mentioned to him you were looking for work full-time and he said I think, there are jobs going at CSR and you said, something like, see what you can do for me? A. He actually said to me, there might be some work coming up and if I was interested in working up there, I would have to register with the Labour Co-op.

Q. You rang CSR or did he ring CSR? A. He rang me.

Q. After that you contacted CSR? A. I cannot recall that I did that.

Q. Did you not ring Denis Randall? A. No. I did not, I did not know Denis Randall.

Q. When did you first get to know the name? A. Tony ... mentioned his name I think, I then registered with the Labour Co-operative and after that, I took an induction which went, there were two inductions with the Labour Co-op and one with CSR and then they would phone me when the work was available.

Q. You agreed with questions from my friend that CSR sent you down to the Labour Co-op for processing and the next question was, someone said you must go down there from CSR? A. I received a phone call from Tony Berrigan saying there was work going at CSR and when it would become available I had to enrol at the Labour Co-op first and be inducted before I could go to CSR, if there was any work going in that phone call someone whose name that I am not sure, he said to say again Denis Randall sent you. That is the only thing I can remember.

Q. Do you remember speaking to Denis Randall directly? A. Not directly.

Q. Or anyone else who contacted you from CSR? A. Other than Tony Berrigan?

8 This aspect of the nature of the relationship between the defendant and Ms Lister, together with the relationship between CSR Timber Products and the defendant, was dealt with in the evidence of Vaughan Wynn Kirkby, the Employee Relations Manager of CSR Timber Products, whose record of interview signed by him on 19 May 1999 stated : Q17. What is the nature of CSR Ltd's business? A17. It is a building materials company and sugar company.

Q18. Did CSR Timber Products occupy the premises located at Masonite Road, Raymond Terrace 2324 on the 01.07.98, the day of the accident? A18. Yes.

Q19. Did CSR Timber Products own the plant in the Boardmaking Area that Julie LISTER was operating on the 01.07.98? A19. Yes.

Q20. Was the work being performed by Julie LISTER on the 01.07.98 being performed in conjunction CSR Timber Products business? A20. Yes.

Q21. Was Julie LISTER an employee of CSR Timber Products on the 01.07.98? A.21. No.

Q22. Do employees of CSR Timber Products work in the area where the accident occurred? A22. Yes.

Q23. Who employed Julie LISTER on the 01.07.98 and why was she working on CSR Timber Products premises? A23. The Labour Co-operative Ltd employed Julie LISTER who was supplied to CSR Timber Products as contract labour casual employee.

Q24. In what capacity was Julie LISTER employed at the time of the accident and how long had she been undertaking the duties of a Backend Operator, in particular "spotting up" the wet lap on Press 4 in the Boardmaking Area? A24. The time record card at the Raymond Terrace premises shows that on the 23.06.98 Julie LISTER worked in another area and on the 30.06.98 and the 01.07.98 Julie LISTER was working in the Boardmaking Area.

9 Gregory Noel Couper, a Marketing Representative for the defendant, said he first met Ms Lister on 15 June 1998 when she attended the induction programme for CSR Timber Products conducted by the defendant at its premises; on 19 June 1998, he said she completed at the defendant's premises an occupational health and safety induction, accredited by the WorkCover Authority. After explaining that the nature of the defendant's business was "a labour hire company providing supplementary labour to a wide range of industrial, commercial, construction, professional and clerical clients", Mr Couper included in his statement the following details regarding the commencement of Ms Lister's relationship with the defendant and her placement for work with CSR Timber Products : 8. Julie commenced work training on 23 June, 1998 as per a labour request received from CSR on 19.6.98 from Mr Denis RANDELL. Labour Cooperative supports training by meeting half the cost of each shift whilst the person is training on the job. This was also the case in relation to Julie LISTER.

9. Julie LISTER was to attend work training on 24 and 25 June, 1998 however she experienced transport problems and was unable to get to work.

10. Julie LISTER next notified for work on 30 June, 1998 where she was employed in the Board Making section, again undergoing training. She was next rostered to perform day shift between the hours of 6am and 6pm on 1 July 1998. This was also a work training shift.

11. About 5.30pm 1 July, 1998 I received a telephone call at my home from Dennis RANDELL, advising Julie LISTER had been injured.

10 Mr Couper agreed that Ms Lister's labour was supplied to CSR Timber Products in accordance with the arrangement set out in the quotation dated 16 July 1997 from the defendant to CSR Timber Products, as referred to above, except that the money rates therein had changed with the passage of time. It was Mr Couper who, at the induction session on 15 June 1998, explained to Ms Lister the contents of the August 1996 Induction Booklet; as to the deletions in that booklet, as referred to earlier, Mr Couper said they had been deleted by CSR Timber Products at the time of the induction of Ms Lister "because they were irrelevant to those processes" and "they wouldn't have been elaborated upon". Under cross-examination, Mr Couper accepted that there were two methods by which the defendant handled labour - first, where an unemployed person without any reference registered with it and was sent to a suitable job to work; and, second, employers hire labour and send the person to the defendant for training. In acknowledging that CSR Timber Products used both methods to obtain workers, Mr Couper said Ms Lister was in the second category. He then added that in inducting her he considered he was "giving an induction to an employee of CSR". However, he conceded in re-examination that in conducting the induction on 15 June 1998 that that was his sole concern and he had no supervision over the documents signed by Ms Lister for the defendant.

11 The defendant's Marketing Manager, John Edward Dodd, was a Marketing Representative for the defendant during the relevant events concerning Ms Lister and he was expressly authorised by it "to supply and discuss information" with the WorkCover Authority with regard to what occurred. Mr Dodd was interviewed extensively concerning the matters by the prosecutor on 21 April 1999 and he signed a record of interview. In relation to this question of the employment relationship between the defendant and Ms Lister, the record disclosed : Q16. How many employees does the Labour Co-operative have? A16. Approximately 22 permanent employees and up to 800 casual employees.

Q17. What is the nature of the Labour Co-operative Ltd's business? A17. Labour hire.

Q18. Was the work being performed by Julie LISTER on the 01.07.98 at CSR Ltd premises being performed in conjunction the Labour Co-operative Ltd business? A18. Yes.

Q19. Was Julie LISTER an employee of the Labour Co-operative Ltd on the 01.07.98? A19. Yes.

Q20. How long had Julie LISTER been employed by the Labour Co-operative Ltd up to the 01.07.98? A20. From the 23.06.98.

Q21. In what capacity was Julie LISTER employed at the time of the accident at CSR Ltd? A21. She was employed as a labourer/non trades.

Q26. Was Julie LISTER contracted to CSR Ltd by the Labour Co-operative Ltd on the 01.07.98? A.26. No she was working for the Labour Co-operative Ltd, as supplementary labour to CSR Ltd. Julie LISTER was employed by the Labour Co-operative Ltd but Julie LISTER would be working under CSR Ltd's instructions as per the job descriptions.

Q27. Why was Julie LISTER on CSR Ltd premises on the 01.07.98? A27. Julie LISTER was there to be trained to perform the duties required by CSR Ltd to do the job as required.

Q.28. What was the procedure for the Labour Co-operative Ltd to contract employees to CSR Ltd on the 01.07.98? A28. Labour Co-operative Ltd quote for the supply of supplementary labour to our potential clients. Upon acceptance of the quotation persons can then be placed at the clients after meeting any specific requirements by the client, eg inductions.

Q34. Did CSR Ltd ask for specifically qualified and/or experienced persons from the Labour Co-operative Ltd to undertake Julie LISTER's duties? A34. The Labour Co-operative Ltd were requested by CSR Ltd to register Julie LISTER with our organisation to undertake the CSR Ltd induction and she was then formally requested by Denis RANDALL (in charge of production at CSR Ltd, at the floor level) to go to CSR Ltd for training.

Q35. Why did CSR Ltd not ask for specifically qualified and/or experienced persons from the Labour Co-operative Ltd to undertake Julie LISTER's duties? A35. I don't know why they would request Julie LISTER, except to train her for the position.

Q36. Did the Labour Co-operative Ltd inform CSR Ltd of Julie LISTER's qualifications and/or experience prior to her commencing employment at CSR Ltd's premises? A36. Labour Co-operative Ltd would suggest that CSR Ltd were aware of Julie LISTER's qualifications when they sent Julie LISTER in to register with the Labour Co-operative Ltd and when CSR Ltd requested Julie LISTER for training shifts.

Q37. How were the details of Julie LISTER's qualifications and experience provided to CSR Ltd? A37. I assume through Julie LISTER and the fact that she was sent in and in turn requested by CSR Ltd.

Q38. How did the Labour Co-operative Ltd match Julie LISTER's qualifications and/or experience to the duty requirements of CSR Ltd? A38. Julie LISTER was requested by CSR Ltd to undertake training shifts. The first request was for three 12 hour training shifts and the second request was for two 12 hour training shifts. I would assume that the training would have continued for some time.

Q40. What assessment is made of Labour Co-operative Ltd employees prior to being contracted for a position? A40. Labour Co-operative Ltd employees are required to fill out an Employment Registration form giving details of qualifications, skills, tickets or certificates held, induction details if any and a person health questionnaire. Depending on these skills and qualifications, decisions are then made as to when and where these people can be employed.

Q41. Are applicants required to complete any paperwork outlining qualifications and/or experience for the Labour Co-operative Ltd? A41. Yes, an Employment Registration form.

Q57. On the 01.07.98, did the Labour Co-operative Ltd have a current Workers' Compensation insurance policy for workers located at Masonite Road, Raymond Terrace 2324? A57. Yes.

Q58. What was the name of the insurance company, the policy number and the expiry date? A58. GIO Australia, WC115316, expiry date: 30.06.99.

Q61. Did Julie LISTER sustain an injury as a result of that accident which occurred at the premises of CSR Ltd located at Masonite Road, Raymond Terrace 2324 on the 01.07.98. Such injury resulting in her being unable to resume her usual duties for 7 consecutive days following the 01.07.98? A61. Yes.

Q62. Has Julie LISTER returned to work since the 01.07.98? A62. Not at CSR Ltd, but she is on selected duties at Blackbutt Reserve through Newcastle City Council.

Q63. Why has Julie LISTER not returned to work at CSR Ltd? A63. Due to psychological factors, Julie LISTER is unable to return to the environment where she was injured.

Q64. When did Julie LISTER return to work on suitable duties? A64. 23.02.99. Initially for three hours a day for two days a week, I believe it is now four hours a day for two days a week.

Q84. Was CSR Ltd given any instructions by the Labour Co-operative Ltd in relation Julie LISTER working at Masonite Road, Raymond Terrace 2324? A84. On the standard quotation form the Labour Co-operative Ltd requests that "The hirer is required to ensure the health and safety at the relevant workplace according to the relevant Occupational Health and Safety Act. Should the employees be required to perform duties, other than those stated by you, please ensure Labour Co-operative is notified and that appropriate training is provided and assessed." The fact that Julie LISTER was requested by CSR Ltd for training and CSR Ltd would know that the Labour Co-operative Ltd would be responsible for half of the training costs, CSR Ltd would be aware of what was expected by the Labour Co-operative Ltd. There would have been no other verbal instructions.

Q85. Why did the Labour Co-operative Ltd not provide CSR Ltd with verbal instructions in relation to Julie LISTER working at Masonite Road, Raymond Terrace 2324? A85. Julie LISTER was not the first person that the Labour Co-operative Ltd had placed at CSR Ltd for training. CSR Ltd was aware of the monetary details and CSR Ltd were aware of the need for training these people. CSR Ltd would prefer to use people from the local area, Raymond Terrace, Heatherbrae and Tomago and the Labour Co-operative Ltd endeavour to secure people for employment from these areas and to assist CSR Ltd in the cost of training these people.

Q86. What method was used by the Labour Co-operative Ltd to ensure that CSR Ltd carried out those instructions issued by the Labour Co-operative Ltd? A86. Verbal contact with members of CSR Ltd staff.

Q107. How did CSR Ltd assess the effectiveness of the training provided to Julie LISTER? A107. After the first shift on the 23.06.98 Julie LISTER was requested again by CSR Ltd to work on 30.06.98 and 01.07.98. I don't know the results of any assessment made on the 23.06.98, but I assume that she met the requirements. I don't know what was done on the 30.06.98 or 01.07.98 or thereafter.

Q108. Does the Labour Co-operative Ltd have an on going training program for its employees? A108. Yes. Any training Labour Co-operative Ltd employees require to maintain their job, we will provide that training.

Q109. Was any training given to Julie LISTER in relation to the system of work in place on the 01.07.98 for "spotting up" the wet lap on Press 4 in the Boardmaking Area at CSR Ltd? Q109. No, the Labour Co-operative Ltd is not qualified to do that and we were absorbing the cost for CSR Ltd to do this training.

12 In cross-examination, Mr Dodd dealt with, as did Mr Couper, the two sources from which the defendant drew labour - he agreed that Ms Lister was in the second category (where an employer sends to the defendant for training existing employees at that plant) rather than the first category (where an unemployed person without referral registers with the defendant and it attempts to find them work). In light of his answer in the interview with the prosecutor to a contrary effect, Mr Dodd gave this evidence under cross-examination :

Q. You mention in your statement that Julie Lister was an employee of Labour Co-operative on 1 July, you answer was that? A. Yes.

Q. Do you still persist in maintaining that answer? A. I suppose I should tell you if I could, your Honour, a little about the Labour Co-operative to justify that answer. The Labour Co-operative was set up as a non-profit organisation and set up to give people full-time work. Very difficult in these circumstances to do that. But anyone we put into work comes in off the street or another employer asking us to do the training for them and put them in induction and they will use those people for work. We still try and maintain them as an employee. It is a difficult question, so the answer would be yes. But it is the circumstances governing that answer I have just given.

13 In re-examination, Mr Dodd said : Q. You were asked some questions just now by my friend in which you were reminded that at least in several places in your record of interview you referred to Julie Lister as an employee, do you remember that? A. Yes I do.

Q. Let me put it another way. Is it your opinion that still as today that she still is an employee or has your opinion changed from when you gave the record of interview or is it a question you now cannot answer? A. I think again I would come back to what I suggested before, that the Labour Co-operative does take an interest in our people. We try and make sure that when they go into a work environment they are safe, they do get there safely and they get home safely. It's part of the Co-operative philosophy, it's part of Co-operative's nature. None of us at the Labour Co-operative want to see anyone get hurt. We have actually pulled people out of jobs because we hadn't thought that they had been safe. We haven't allowed them to do it. I would say we - Julie Lister is our employee but we were asked again by CSR to make sure that she went through these things because that is the way they wanted Julie Lister to work for them.

As I said earlier, if Julie came in off the street and registered I would not have put her in that position, but didn't know what they had in store for Julie Lister, by way of training or in how long the work would go on for.

Q. Are there differences in the documentation that people sign up depending on how they are introduced to your organisation? A. No.

Q. In both categories they still sign the same registration form? A. Yes.

Q. The same documentation is used? A. Yes.

Q. Paid the same way? A. Yes.

Q. Your organisation carries a workers' compensation insurance for them? A. Of course, we do.

Q. And indeed in relation to Julie Lister your organisation has been carrying the on-going, well has since her injury at least at the time you were interviewed you had her on a 38 hour week of pay even after she left you? A. That's right.

Q. Has that continued to today? A. Julie is now working I think on a s38. We have terminated her employment and she has gone on to that section. Very limited what Julie can do and we discussed it with Julie before we went down the track.

14 Further on this first aspect as to whether an employment relationship existed between the defendant and Ms Lister, Denis James Randall gave evidence. He was the Production Manager for CSR Timber Products at all relevant times in mid-1998 and provided the following statement to the WorkCover Authority in Newcastle for the purposes of the investigation of the incident : 1. The arrangement between the Labour Co-Operative and CSR Limited (t/as CSR Timber Products) were covered by a system of standing orders. These standing orders were filled on a needs basis by the Labour Co-Operative at CSR's request. The procedure was for CSR to ascertain their daily needs and advise the Labour Co-Operative of the casual labour required for the coming week. I understand that all relevant documents have been provided to WorkCover by CSR.

Julie Lister like several other people working for the Labour Co-Operative at the CSR site at Raymond Terrace was introduced to CSR by word of mouth from people working at the site. This was usually based on the persons work ethic and proximity to the plant. A person working at the plant would recommend the person, as with Ms Lister, and we would refer them to the Labour Co-Operative as a potential casual employee. They would then be trained by the Labour Co-Operative. Half the costs of training were borne by the Labour Co-Operative and half the costs were borne by CSR. If they proved to be suitable they would then become a casual added to the list of potential employees to fill labour needs for the plant.

I understand the standard contract has been provided to WorkCover by CSR.

The usual practice for payment arrangements between CSR and the Labour Co-Operative was for CSR to request from the Labour Co-Operative certain labourers attend the site. The labourers would provide work on the site and CSR would forward to the Labour Co-Operative confirmation of the hours worked by each Labour Co-Operative employee. The Labour Co-Operative would then invoice CSR for the cost of their staff. I understand that the amount invoiced was higher than the hourly wage rate earned by the Labour Co-Operative employee. I understand the actual documents for this system have been provided to WorkCover by CSR.

I understand that CSR have provided this documentation to WorkCover.

These documents were prepared by the CSR wage office. I understand the coding AWU shift on the "CSR Timber Products Contract Labour Hours" document refers to the internal wage system of CSR. The coding reflects a particular classification of work at the plant and indicates to the labour Co-Operative what the internal CSR job classification would have been for a CSR employee doing the same job. I believe this was to allow the Labour Co-Operative to work out the correct wage rate to pay their employees.

15 As to the two sources of labour utilised by the defendant, Mr Randall said under cross-examination : Q. You are aware, are you, of the two methods of work organised by the Labour Co-operative. Let me put them to you separately, some people come from the Labour Co-operative to you at your request? A. Mmm.

Q. To work for CSR? A. That's correct.

Q. Some of them, I assume, are suitable, and some are not, if they are not suitable you send them back and you want someone else? A. Yes. What happened, we used to get a lot of people through Labour Co-op who had never been around and it was up to the teams if they were accepted or not. If they weren't accepted I would ring the Labour Co-op and say: We are not further going to use this person. And virtually that's where a lot of this - what's the word, I would say - inhouse people would be asked to come to me and say: Well my brother's son is interested in working, he is suitable and all that, that would go through the team then that way.

Q. That's what happened with Julie Lister, it was that second form of engagement that happened with Julie Lister? A. That's correct, it came through Tony Berrigan.

16 Apart from the evidence referred to above from persons who gave oral evidence on the issue of the employment relationship, the prosecutor relied upon the various documents as detailed above. No evidence was called by Mr Macken in the defendant's case.

17 The defendant denied ever being the employer of Ms Lister and, specifically, that it was her employer at the premises of CSR Timber Products on 1 July 1998 when she was injured. On the facts, Mr Macken submitted that at the relevant time Ms Lister was an employee of CSR Timber Products. The fundamental submission of counsel in that respect was that the defendant "had two methods of managing labour, one, people off the street sent to the employers and two, people sent by the company for training, and the evidence shows Julie Lister to have come to the Labour Co-op after having been made an employee of CSR". In support of the proposition that Ms Lister was already an employee of CSR Timber Products before attending the defendant, Mr Macken referred to the evidence in the following way : But here I have got evidence which I would submit is unarguable and conclusive, that a concluded contract of employment was entered into by Julie Lister with CSR, which shows that, even though she had never even heard of the Labour Co-op, the evidence shows Tony Berrigan an employee of CSR said to Julie Lister, CSR are recruiting and that she should speak to Denis Randall. He spoke to Mr Randall, and then Julie Lister spoke to Denis Randall, and he said to her, if the teams accept you, okay. Then they would submit her name to the team - not to the Labour Co-op - do you approve of Julie Lister working amongst you.

I assume the team discussed it and they said, yes. He said to Julie, it is okay for you to work here, and she is very grateful. If that is not an offer and an acceptance of a contract of employment, then there is no such thing. It was intended to create a legal arrangement between CSR and Julie Lister and, at the point of acceptance of the contract, she had never heard of the Labour Co-op but she was then sent there by Mr Randall - and she did not know, she had to ask the way to Labour Co-op.

... It does not matter how she came to be there, she was an employee by every rule of law before she went to the Co-op and, if that was so, she cannot also be an employee of the Labour Co-op, and the evidence of Mr Randall, Mr Dodd and others is, she is sent by CSR for induction and training to the Labour Co-operative.

... what the evidence shows, she was sent to the Labour Co-op for training to become a continuing employee of CSR and she expected to be working at CSR and be an employee of CSR.

18 In the result, Mr Macken put this submission : My submission is that, viewing the evidence, the whole of the circumstances of this case viewed objectively on the evidence, would tend towards the Labour Co-op training an employee of CSR for work at CSR, but I am acting as if I have to prove that Julie Lister was an employee of CSR and I do not have to prove that. I am being generous in my approach to the prosecution, perhaps wrongfully. They have to prove beyond reasonable doubt that the employment was with the Labour Co-op, getting over the formality of the contract of employment and the enormous problems of the criminal onus and they have to prove that beyond reasonable doubt, firstly, there was no contract between Miss Lister and CSR and that there was an offer and acceptance to create the legal relationship by Julie Lister and the Labour Co-op for which there is no evidence what so ever.

19 It was denied for the defendant that it had any control over the work performed by Ms Lister, such control being vested in CSR Timber Products in training her and in directing how the work was to be done as a member of the work team and in respect of which the defendant had no involvement or, indeed, any right to become involved. Given that the control over the work of a person was the primary test in determining whether a relationship of employer-employee existed, counsel submitted it necessarily followed that Ms Lister was employed not by the defendant but by CSR Timber Products. As to what might be thought to be the contrary indicia of such employment, that is the payment of wages by the defendant to Ms Lister and the various documents concerning their relationship, Mr Macken described that as merely the "standardised paperwork" in that the defendant was really paying her "on behalf of CSR" with reimbursement from CSR Timber Products, including as to labour on-costs, workers' compensation premiums and the like. In relation to the other indicia, as relied upon by the prosecutor to support an employment relationship between the defendant and Ms Lister, Mr Macken emphasised that such indicia were reduced in significance because of the "pre-existing contract of employment" between CSR Timber Products and Ms Lister.

20 After dealing with the evidence relevant to this aspect of employment, counsel for the prosecutor, Mr P M Skinner, submitted that Ms Lister was an employee of the defendant and howsoever she may have been introduced to the defendant did not change the fact that she worked at CSR Timber Products as an employee of the defendant. In dealing with Mr Macken's submission that a concluded contract of employment had been made between CSR Timber Products and Ms Lister before she was introduced to the defendant, Mr Skinner countered in this way : My friend has developed, through various witnesses and on the evidence, that there were two categories of workers. I will call them workers, to use a neutral term, on the books of Labour Co-op. In my submission the distinction is only as to the means of introduction. Either they come in off the street, I think was the first category, or they are introduced - in the circumstances of this case - through CSR. CSR sends them down as the second category. Either way, they then become employees, overwhelmingly on the evidence, of the Labour Co-op, not of CSR.

Your Honour has just heard Mr Randall about half an hour ago in the witness box say - as a result of questions from my friend - about what would happen if the worker didn't fit in with the team or otherwise was unsatisfactory. He agreed with the question that if he or she was not suitable, we'd send them back. Not dismiss them; we'd send them back. They are Labour Co-op's employees. They would go back to Labour Co-op. She signed the employment registration form.

21 Mr Skinner relied heavily on the documentary evidence to support an employment relationship between the defendant and Ms Lister, including in particular the employment registration form, employee work practices and procedures information package, induction booklet, pay slips, standing order on the defendant for labour hire by CSR Timber Products and schedule of rates for casual hire of labour submitted by the defendant to CSR Timber Products. As to the test of control of the work of Ms Lister by CSR Timber Products as supporting an employment relationship between them rather than with the defendant, Mr Skinner emphasised that "it is quite normal in these sort of labour hire situations, the more powerful control test lies with the Labour Co-op"; here, as the evidence showed, if Ms Lister was not satisfactory in performing the work then she was to be "sent back" to the defendant which had the power of dismissal residing with it. "At best", said Mr Skinner, "there is an introduction sending her down to the Labour Co-op" for employment by it to perform work for CSR Timber Products according to the casual hire arrangement between that company and the defendant.

22 An essential ingredient of the offence created by s 15(1) of the Occupational Health and Safety Act is that the defendant must be the employer of the person who is subject to the relevant detriment to safety. The obligation is stated in the sub-section in terms that an "employer shall ensure the health, safety and welfare at work of all the employer's employees". Having in mind that s 4(1) of the Occupational Health and Safety Act defines an "employee" and an "employer" by reference to the relationship between them being under a contract of employment, the present issue depends upon whether Ms Lister was an employee of the defendant in the common law sense, that is, whether a contract of employment existed at the relevant time between the defendant and Ms Lister whereby she was required to work at the premises of CSR Timber Products when she was subject to the alleged risks to safety on 1 July 1998.

23 The true characterisation of the relationship involves the initial consideration as to whether a legal relationship existed at all or, as Mr Macken submitted, where the real relationship of employment here existed between CSR Timber Products and Ms Lister. In other words, it is necessary to ascertain first the existence of a relationship and, if one be found, to identify its nature - either one as between employer-employee or as between principal-independent contractor or some other relationship, such as that of principal-agent. In Dalgety Farmers Ltd t/as Grazcos v Bruce (1995) 12 NSWCCR 36 at pp 47-48, Kirby A-CJ put it this way : In determining whether a contract of service has been entered, and if so with whom, it is necessary to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer. To determine whether what then ensured was indeed employment (in the sense of a contract of service) it is necessary to look to the whole of the relationship.

24 I am satisfied on the evidence, contrary to Mr Macken's submission, that there was no contractual relationship between CSR Timber Products and Ms Lister. That being so, it necessarily follows that Ms Lister could not have performed the work at the Raymond Terrace premises of CSR Timber Products as its employee.

25 Ms Lister's evidence, which I accept, was that she was looking for full-time permanent work and mentioned this to a friend, Mr Tony Berrigan, who worked at CSR Timber Products. Mr Berrigan told her there might be work available at his company and, if so and she was interested, she would have to "register" with the defendant; eventually, Mr Berrigan telephoned and directed her to the defendant. The arrangement was that she was to enrol with the defendant, indicating Mr Randall had sent her, and she would be contacted when work was available. Ms Lister said she did not speak to Mr Randall or anyone else from CSR Timber Products, other than Mr Berrigan, but registered with the defendant and completed two inductions with it and one with CSR Timber Products on work becoming available. Mr Couper confirmed the two inductions of Ms Lister by the defendant on 15 June 1998 (induction programme for CSR Timber Products) and on 19 June 1998 (occupational health and safety induction) and, significantly, said a labour requisition in accordance with the arrangements set out in the standing order was received by the defendant from CSR Timber Products (per Mr Randall) on 19 June 1998 for the training of Ms Lister; she then so attended work training at CSR Timber Products on 23 and 30 June and on 1 July 1998. Mr Dodd, as did Mr Couper, acknowledged the two sources by which the defendant obtained labour to hire to its clients and accepted that Ms Lister was in the category of reference to the defendant by a client company, CSR Timber Products; he acknowledged too that the utilisation of Ms Lister's services was as supplementary labour which had been organised pursuant to the arrangement between the defendant and CSR Timber Products.

26 The evidence of Mr Randall on this aspect of the existence of a relationship between CSR Timber Products and Ms Lister was of importance because it was expressly relied upon by Mr Macken to establish a contract of employment between them. After outlining the system according to the standing order for casual labour by CSR Timber Products to the defendant on the basis that the defendant would supply labour on request, Mr Randall acknowledged the interest for work of Ms Lister was through Mr Berrigan. However, and contrary to Ms Lister's evidence, Mr Randall said he spoke to her when work became available. His evidence was : Q. Mr Randall, I want you to address your memory to the circumstances which led to the engagement of Julie Lister at CSR. We have had some evidence about the employment at CSR of a man Tony Berrigan; do you know a Tony Berrigan? A. Yes, he works at the factory.

Q. We have also had evidence that Tony Berrigan is a friend of Julie Lister, was a friend of Julie Lister's? A. Yes, that's correct.

Q. And some evidence that Tony Berrigan firstly told Julie Lister that CSR were recruiting labour, if she was interested, and that he spoke to someone at CSR about Julie Lister working there, are you aware of that? A. He spoke to me.

Q. He spoke to you. Do you remember that conversation, what did Tony Berrigan say to you about Julie Lister? A. Well, I can't remember word for word, but he just--

Q. As best you can. A. Because we were looking for casuals at the moment, at the time, and he just mentioned that he knew a person he knew that was interested in doing some casual work and he told me the name and that name then went to the teams and the teams agreed to give her a go and she went over to the Co-op for induction for arrangements made by me.

Q. You were responsible, I think, for recruiting labour, generally, to CSR? A. Yes, but the sections that I looked after, I was the person who arranged casuals for those areas, yes.

Q. And the team that Julie Lister ended up working in after a few days on the plant was the team to which you submitted her name? A. Yes, all teams would have got her name.

Q. And the purpose of that was to make sure that she was acceptable to the workforce, generally? A. Yes. See, some - well, I don't know if it's me, but some names were submitted and people were rejected, due to people knew them and said they didn't think they would be worthy, so that's why we handed the names to the teams and the teams agreed or not agreed and that's where it went further on from that.

Q. Well now, after the teams had agreed to Julie Lister's joining the workforce, how was Julie Lister told that that result had been brought about? A. I would have rung Julie Lister myself and arranged for her to - that she had been accepted in a way, and she would have to go to Labour Co-op and be registered with them and then put through the induction of the factory and what the Labour Co-op also done, then she would be notified by me as to when to come up to the factory for training.

Q. When you spoke to Julie, do you remember that conversation you had with her, that was by phone, I take it? A. Yes.

Q. Do you remember that conversation? A. Oh, not really, no.

Q. Do you remember the exact words or the conversation? A. I would have remembered talking to her, but the words I would not remember.

Q. You wouldn't remember the words? A. No.

Q. Do you remember her responding to you? A. I would say she was grateful.

Q. And did you then tell her how she was to get to the Labour Co-op? A. Yes, I would have given her the address and who to probably speak to down there, so they knew.

Q. Who did you tell her to speak to? A. I couldn't say.

Q. Now you were in the habit of faxing labour requirements to the Labour Co-operative from time to time? A. Per week, yes, when required.

27 It was essentially on that evidence of Mr Randall that Mr Macken based his fundamental submission to the effect that once the work team at CSR Timber Products approved Ms Lister working as one of its members, with Mr Randall then saying she could work at the premises and she expressed gratitude, then, as Mr Macken said, there was thereby created "a concluded contract of employment ... an offer and an acceptance ... a legal arrangement between CSR and Julie Lister ... she was an employee by every rule of law before she went to the Co-op". I have to disagree.

28 Although Ms Lister could not recall ever having spoken to Mr Randall, I am prepared to accept his evidence for present purposes. Even then, in my view, that evidence in no way established a legal relationship between CSR Timber Products and Ms Lister. At best, in the terminology of contract law, it was an invitation to treat extended to Ms Lister by CSR Timber Products for Ms Lister to register with the defendant as an employee thereof in which case it would be prepared to train her as a member of the work team pursuant to the arrangement CSR Timber Products had with the defendant to supply casual labour from time-to-time. It is clear, it seems to me, that if the defendant had not been prepared to "register" or "enrol" Ms Lister then any arrangement as between her and CSR Timber Products in the form stated could not have been effected. In any event, the matters discussed between Mr Randall and Ms Lister in terms of the creation of a legally enforceable contract, as Mr Macken suggested occurred, simply did not exist - there was no mention of the wage rate to be paid, work to be performed (other than training), hours of work or conditions of employment generally; indeed, the omission of such matters, important as they are to the creation of a true legal relationship of employment as the consideration for any offer and acceptance, are to be understood in light of the evidence of Mr Couper who inducted Ms Lister on 15 June 1998 into the CSR Timber Products work environment by reference to the booklet but with the deletion therefrom of those important indicia of employment "because they were irrelevant".

29 I am in no doubt that a legal relationship did not exist between CSR Timber Products and Ms Lister. It could not, therefore, have been Ms Lister's employer at the relevant time of her injury at the Raymond Terrace premises on 1 July 1998. On the evidence, it is clear, in my view, that the relationship which CSR Timber Products had was with the defendant to supply casual labour as required from time-to-time in accordance with the standing order and at the contract rates agreed between them.

30 The question which then arises is whether there existed a legal relationship between the defendant and Ms Lister and, if so, the nature thereof. In my view, the evidence of a relationship is overwhelming and I accept the thrust of Mr Skinner's submissions in that respect. Shortly stated, I have no doubt that the above-cited evidence points inevitably to the relationship between the defendant and Ms Lister being properly defined as one where, in consideration of the payment of remuneration by the defendant to Ms Lister, she would perform certain work, including training, at the Raymond Terrace premises of CSR Timber Products and in the performance of such work she would work under the direction and control on a day-to-day basis of CSR Timber Products as a member of the work team. It is only necessary in so characterising the relationship to refer to the evidence leading to that view not only of Ms Lister herself but also of Mr Couper and Mr Dodd employed by the defendant and Mr Kirkby and Mr Randall employed by CSR Timber Products. That evidence, in my view, established the necessary elements for the relationship to have legal status as involving offer and acceptance, consideration and performance. It only remains to determine its true nature.

31 Before reviewing the evidence and applying it to the relevant principles of law so as to enable a determination of the present question, it is necessry to identify the ultimate question, namely, whether Ms Lister was employed by the defendant under a contract of employment on 1 July 1998 when she suffered the detriment to her safety at the Raymond Terrace premises of CSR Timber Products. In so doing, I think it important to recognise that the answer to that ultimate question is one of fact, although in reaching the conclusion questions of mixed law and fact will arise: see Clarkson v Dent (1998) 84 IR 250 at pp 252-253; Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762 at pp 765-766; and Commissioner of Taxation (Cth) v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227 at p 229. Given the true nature of the relationship to be a question of fact, it is appropriate in reviewing the evidence to have in mind the comment of Handley JA, with whom Kirby P agreed, in Pitcher v Langford (1991) 23 NSWLR 142 at p 160 that admissions as to the true nature of a relationship are admissible and entitled to considerable weight. Indeed, that comment was consistent with what Lord Denning MR said in Massey v Crown Life Insurance Co [1978] 1 WLR 676 at p 679 that the agreement between parties "becomes the best material from which to gather the true legal relationship between them"; the Privy Council in Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 at p 601 adopted Lord Denning's statement as correct and referred to the principle to the same effect stated by the Privy Council in Australian Mutual Provident Society v Allan (1978) 52 ALJR 407 at p 409, (1978) 18 ALR 385 at pp 389-390 per Lord Fraser of Tullybelton. The only qualification one might add to the intention of the parties in characterising the nature of their relationship is where it was a sham or not a genuine statement of intent. Here, however, there was nothing in the evidence to suggest lack of bona fides and counsel did not say there was.

32 As outlined earlier, Mr Skinner referred to the various pieces of documentary material to support an employment relationship between the defendant and Ms Lister and I do not propose to repeat it. Suffice it to say there was considerable material in the documents to support Mr Skinner's submission and, in my view, it could not seriously be suggested that that evidence supported anything other than the relationship being that of employer-employee. Indeed, and notwithstanding the endeavours by Mr Macken in his cross-examination of the various witnesses to a contrary effect, I think Mr Dodd gave telling evidence when he said, by reference to the nature of the defendant's business "as a non-profit organisation and set out to give people full-time work", that "Julie Lister is our employee". It was significant also that Mr Dodd said that after the incident in which Ms Lister was injured and received workers' compensation benefits the defendant "terminated her employment". In that latter respect, it is significant too that Mr Randall agreed persons sent to CSR Timber Products by the defendant who were unsuitable were "sent back" and he would telephone the defendant and say "we are not further going to use this person". Mr Skinner in dealing with the direction of and control over Ms Lister in the performance of work emphasised the labour hire nature of the arrangement and the ultimate power of dismissal from employment being with the defendant. On the other hand, Mr Macken submitted there was "no evidence whatsoever" of a legal relationship of employment between Ms Lister and the defendant and the documentation suggesting otherwise was merely the "standardised paperwork" in such situations. I have to say that I think there was an abundance of evidence against Mr Macken's submission.

33 Once it be accepted, as I have found, that there was no legal relationship between CSR Timber Products and Ms Lister then the reliance by Mr Macken on the degree of alleged control over her work by CSR Timber Products fades into insignificance. It was not suggested by counsel that she was not employed by someone, only that she was not employed by the defendant but by CSR Timber Products - there was no other entity available for consideration on the facts and it was not said she was an independent contractor but only that the prosecutor had the onus according to the criminal standard to establish the existence of a contract of employment. In my view, the only possible area on the evidence where a relationship of employment between the defendant and Ms Lister could be doubted was on the aspect of the control exercised by the defendant over her work. The aspect of control by itself, in my view, cannot be decisive of the nature of a relationship. As Mason J, as he then was, observed in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at p 24, "the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. ... regard it merely as one of a number of indicia which must be considered in the determination of that question ... .". His Honour added (160 CLR at pp 28-29) : The traditional formulation, though attended with some complications in its application to a diverse range of factual circumstances ( Federal Commissioner of Taxation v Barrett ((1973) 129 CLR 395 at p 400)), nevertheless has had a long history of judicial acceptance. True it is that criticisms have been made of it. It is said that a test which places emphasis on control is more suited to the social conditions of earlier times in which a person engaging another to perform work could and did exercise closer and more direct supervision than is possible today. And it is said that in modern post-industrial society, technological developments have meant that a person so engaged often exercises a degree of skill and expertise inconsistent with the retention of effective control by the person who engages him. All this may be readily acknowledged, but the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, "so far as there is scope for it", even if it be "only in incidental or collateral matters": Zuijs v Wirth Bros Pty Ltd ((1955) 93 CLR 561 at p 571). Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered. The approach so stated was followed by the majority of the High Court ( Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) in Hollis v Vabu Pty Ltd t/as Crisis Couriers [2001] HCA 44 at pars [43]-[44] and where their Honours then commented at par [45] that "guidance for the outcome is provided by various matters which are expressive of the fundamental concerns ... include, but are not confined to, what now is considered 'control'".

34 The recent decision of a Full Bench of this Court (Wright J, President, Walton J, Vice-President and Hungerford J) in Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 69 is instructive. The sole issue raised for determination in that case was whether or not a person was an employee of a labour hire company which supplied labour to clients. After citing various authorities, their Honours said (96 IR at pp 100-101) : The circumstances in which the contract was made involved the prior agreement between the appellant and Warman as set out in the document dealing with the benefits of the appellant's temporary staffing which was replete in its terms, both express and implied, that a person placed with a client was an employee of the appellant. That document, in our view, made it patent that there was an agreement between the appellant and Warman whereby the appellant would provide the services of persons, on a temporary staffing basis as required, to Warman in consideration of Warman paying a fee to it. Mr Terkes was so made available.

We have said earlier that an element involved in an employment relationship was that the performance of the work concerned must be for the benefit of the employer. Here, of course, the work performed by Mr Terkes at Warman's Artarmon factory was subject to regular on-the-job control by Warman as to the work to be performed and how that should be achieved. Indeed, it was that aspect which was at the core of Mr Macken's case that the control and direction over Mr Terkes was exercised by Warman so that it was the true employer of him and that was so because the work was for Warman as part of its manufacturing process. As much as that may be, we do not consider mere on-the-job direction of a person necessarily makes that person the employee of the person directing.

In this case, having in mind the way in which we have formulated the contract between the appellant and Warman, the services of Mr Terkes were provided to Warman by the appellant in return for a fee and in respect of which it was for the purposes of the appellant's business as a provider of labour. The point was made by the High Court in Accident Compensation Commission v Odco Pty Ltd (1990) 95 ALR 641 in which Odco carried on business under the name of Troubleshooters Available (TSA) as a labour agency providing the services of tradesmen to builders. The High Court observed (95 ALR at p 652) : "Once it is accepted that there was (1) an agreement between TSA and the builder for the supply of a tradesman to the builder to do certain work on terms that the builder was to remunerate TSA for supplying the tradesman and for the work which he did, and (2) an agreement between TSA and the tradesman whereby the tradesman agreed to perform work at the site at the builder's direction for remuneration to be paid by TSA, it follows as a matter of plain language that the tradesman supplies services to TSA by attending at the site and doing work there. By attending there and doing work, he supplies services to TSA for the purposes of its business, notwithstanding he also at the same time supplies the same services to the builder for the purposes of its business." This same point was made by Kitto J in Perpetual Trustee Co (85 CLR at p 300), by following the illustration in Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1 at 17, that "the statement that the doing of the work must be for the benefit of the master does not mean, of course, that the direct benefit from the work itself must necessarily accrue to the master; he may, without altering the relationship, direct his servant to do work which will benefit another". We understand that to be the position here. Baldi & Fletcher Pty Ltd v Rabmar Pty Ltd [1988] 25 IR 101 further illustrates the point where Clarke JA, with whom Samuels and McHugh JJA agreed, commented (at p 102) :

"It is, I think, beyond argument that Baldi and his accountants organised his affairs in such a manner that he became the employee of Rayneb Pty Ltd which provided his services for reward to B&F. In these circumstances it could not be said, as a matter of law, that Baldi was the servant of B&F. He was not. He was the servant of his family company Rayneb Pty Ltd, which was the entity which entered into the contract or arrangement with B&F." And, in our opinion, so it is in the instant case where the services of Mr Terkes as an employee of the appellant were provided for reward to Warman so that he remained the employee of the appellant and did not become the employee of Warman. On the facts of the present case before me, I find the above reasoning apt to apply to support Ms Lister being an employee of the defendant whereby it provided her services for reward to CSR Timber Products and during such work she did not become the employee of CSR Timber Products.

35 As in Swift Placements, the most Mr Macken could argue here in supporting the transfer of employment from the defendant to CSR Timber Products would be the limited degree of control exercised by the defendant over Ms Lister's work so as to view her pro hac vice the employee of CSR Timber Products at the precise time on 1 July 1998 when she was injured by the moving rack. In rejecting such an approach in Swift Placements, their Honours concluded from the authorities that "whether the employee of the general employer becomes the employee of the particular employer will depend upon the circumstances of the case concerned and where, in any event, such a transfer in employment occurs only 'in quite exceptional circumstances' and where the obligation to establish a new employment was a 'heavy onus'" (96 IR at p 102): see also Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1, [1947] 2 All ER 345; Steel Structures Ltd v Rangitikei County [1974] 2 NZLR 306 at pp 310-311; and Poulson v John Jarvis and Co Ltd [1919] 122 LT Rep 471 at p 478. In that last-mentioned case, Lush J, in considering whether the particular employer had taken over the control of a person before that employer could be said to have become the employer, said "there must be a taking over by the particular employer of the complete control - a complete transfer of the service - before he can be held to be the responsible employer of the workman"; his Lordship added what Bowen LJ said in Moore v Palmer (2 Times L Rep 781 at p 782) that "the great test was this - whether the servant was transferred or only the use and benefit of his work?" In the present case, the evidence, in my view, was plain to the effect that all that was transferred to CSR Timber Products by the defendant was the use and benefit of Ms Lister's work rather than a complete transfer of her service, including the various incidents of employment. It follows, therefore, at the particular time of the detriment to safety on 1 July 1998, notwithstanding the control then exercised by CSR Timber Products over the work (and training) of Ms Lister, that there was no transfer of her employment from the defendant at the particular time or for the particular purpose.

36 I determine the first issue by finding that the defendant was the employer of Ms Lister at all relevant times, including when she was subject to the detriment to her safety on 1 July 1998 and sustained injuries as alleged in the prosecutor's summons.

37 The second aspect I am called upon to decide relates to the causal connection of the defendant with the alleged detriments to safety. The summons particularised those detriments or risks to safety and the essence of them may be summarised as -

· the information, instruction and training provided by the defendant to Ms Lister for work in the Boardmaking Area was insufficient in that it did not highlight the hazards of presses and/or automated mobile plant;

· the supervision of Ms Lister by the defendant was inadequate in that it did not ensure she only carried out duties she was qualified to perform and not to engage in hazardous duties without training and supervision; and

· the supervision of Ms Lister by the defendant was inadequate in that it did not assess the effectiveness of the training or supervision provided to her by CSR Timber Products. Central to each of those risks was the allegation that the defendant failed to provide training to and supervision of Ms Lister, either by itself or as requiring CSR Timber Products to do so in a manner assessed by it as sufficient, while she was operating the heavy machinery in the Boardmaking Area.

38 In Ms Lister's interview with the prosecutor on 17 February 1999, she was asked a number of questions relating to the work performed at the time of injury which, together with details of the training and supervision provided, resulted in the following answers : Q9. What previous experience do you have as a casual labourer? A9. None, as far as using heavy machinery is concerned.

Q10. What are your professional qualifications? A10. I have none.

Q14. How long had you been operating this plant in the Boardmaking Area? A14. My first two days of training was in another area, downstairs. The 01.07.98 was the first day I was in the Boardmaking area.

Q15. How many hours would you estimate that you have spent operating the plant in the Boardmaking Area? A15. About 11 hours, minus lunch and morning tea breaks.

Q22. In your own words, what was the accident that occurred, what did you actually see? A22. I was standing at Press 4 waiting for the automated loading rack to load Press 4 with wet lap. While the Press was being loaded I was standing on the right hand side of the Press, near the ladder. When the automated loading rack moved away, I walked to the left side of Press 4 to find the tool used for spotting. I walked to the left side of Press 4 as this is the side that the other three presses are spotted up from. When I got to the left side of Press 4, I realised that you have to spot up this press from the right side. As I went to walk back to the right side of Press 4, I was slowly trapped by the automated unloading rack, which was sent without my knowledge. When I was trapped I remember reaching for something to stop the automated unloading rack, but nothing happened.

Q23. Why did the accident occur? Q23. My inexperience in the area, and lack of trip wires on the automated rack.

Q24. What do you think the potential for injury was to yourself as a result of accident? A24. I would have been killed.

Q25. Was anyone else working with you when the accident occurred, and if so who was that person or persons? A25. Dennis SANDS, Alan WELLINGS, and David CONNELLY.

Q33. How long had you been working according to the system of work you identified as being in place on the 01.07.98? A33. Five or six hours.

Q35. Who else functioned by this system of work and when did you see them? A35. David CONNELLY was training at the same time as me and he had "Spotted Up" earlier on in the day. We had swapped jobs when I was "Spotting Up". Dennis SANDS had shown me how to "Spot Up" earlier that day. Another guy whose name I can't remember was also "Spotting Up" on the day.

Q43. Who was directly responsible for promulgating and implementing the system of wok in place on the 01.07.98? A43. Dennis SANDS.

Q44. How was this achieved by Denis SANDS? A44. He was showing me what to do himself and explaining the "do's" and "don'ts".

Q54. Does the Labour Co-operative Pty Ltd have a safety induction training program for new employees? A54. Yes.

Q55. Were you given safety induction training when you first commenced employment with the Labour Co-operative Pty Ltd? A55. Yes.

Q56. When and by whom was that safety induction training given to you? (19.06.98) A56. On the 19.06.98 by John DODD and Greg COUPER.

Q57. Did that safety induction training highlight the hazards of presses and/or automated mobile plant? A57. Not that I can remember. I actually had no idea of what machinery I would be exposed to.

Q58. How long did that safety induction training take to be delivered? A58. It was a three hour video and a bit of a talk.

Q61. How did the Labour Co-operative Pty Ltd assess the effectiveness of the safety induction training provided to you? A61. There was no assessment.

Q62. Does CSR Ltd have a safety induction training program for new employees? A62. Yes, but the induction training held at the Labour Co-operative Pty Ltd not CSR Ltd.

Q63. Did that safety induction training highlight the hazards of presses and/or automated mobile plant? A63. No.

Q64. When and by whom was that safety induction training given to you? A64. On the 15.06.98 by Greg COUPER.

Q65. How long did that safety induction training take to be delivered? A65. It was a three to four hours.

Q68. How did CSR Ltd assess the effectiveness of the safety induction training provided to you? A68. There was no assessment.

Q70. Was any training given to you by the Labour Co-operative Pty Ltd in relation to the system of work in place on the 01.07.98 for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area? A70. No.

Q71. Was any training given to you by the Labour Co-operative Pty Ltd that highlighted the hazards of presses and/or automated mobile plant? A71. No.

Q73. Was any training given to you by CSR Ltd in relation to the system of work in place on the 01.07.98 for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area? A73. Only the on the job training with Dennis SANDS.

Q74. Was any training given to you by CSR Ltd that highlighted the hazards of presses and/or automated mobile plant? A74. Dennis SANDS showed me how to manually shut down the loading rack and showed me its path of travel. Dennis SANDS did point out that previously a guy had his leg crushed and that's why they installed the ladders. Dennis SANDS was talking generally about safety.

Q77. What supervision were you provided by the Labour Co-operative Pty Ltd prior to the accident? A77. None.

Q80. How was supervision provided to you? A80. Dennis SANDS was around the area, he wasn't directly supervising me prior to my accident.

Q81. Were either of the Cleeve MORRIS or Gary WALKER, the two shift team leaders, aware of any hazards in relation to the way that you were working on the 01.07.98? A81. They didn't have much to do with my training or supervision, so I would think no.

Q86. Did you think that the system of work you were undertaking on the 01.07.98 for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area was unsafe? A86. I thought it was at the time.

Q87. Why did you think that the system of work for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area was unsafe, what were the hazards? A87. I could have fallen off the ladder while "Spotting Up". It was a dark area with a lot of black dust around. There was a lot of noise and you couldn't hear what was happening. It was an unfamiliar environment with a lot of movement happening. I was concerned that Press 4 needed to be "Spotted Up" from a different side to the other three presses.

Q88. How long had you thought that the system of work for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area was unsafe? A88. For the whole time I was in the area, I only "Spotted Up" Press 4 about half a dozen times.

Q89. Why did you continue to undertake the system of work for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area if you considered it to be unsafe? A89. Because it was part of the training, and if I was to continue to work there on a casual basis I needed to know and understand the procedures.

Q90. Did you tell anybody about the unsafe system of work for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area? A90. I asked Dennis SANDS about Press 4 and the opposite side to "Spot Up" but I can't remember his reply.

Q91. Did anybody say or do anything about the unsafe system of work for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area? A91. I can't remember, I spent most of my time with Dennis SANDS or by myself.

Q92. Could something have been done about the unsafe system of work for "Spotting Up" the wet lap on Press 4 in the Boardmaking Area, and if so, what could have been done? A92. CSR Ltd could have put more safety devices around the automated racks, maybe an audible warning of the automated racks movement. Maybe, some sort of sensor at the front of the automated racking.

39 Mr Randall, as the Production Manager of CSR Timber Products, gave evidence to the effect that Ms Lister spent the first two days at the Raymond Terrace premises training on "a simple job" and on the third day, 1 July 1998, she was moved to the Boardmaking Area on production work. It appeared Ms Lister was allocated to a team as part of her training by a Mr Denis Sands. As to the role played by the defendant in the training process, Mr Randall gave the following evidence : Q. There was no suggestion that the Labour Co-op should have been told about that movement of Julie Lister once they had sent her to CSR, was there? A. No, it was recorded on here anyway where she is shown in two areas. ...

Q. That's the day she was injured? A. I think that was the 1st of July.

Q. So when she did start work in that area, she was totally inexperienced in that area? A. That's correct.

Q. That equipment that she was working on at the time of the injury was not equipment you expected the Labour Co-op to train her in the operation of? A. No, that's entirely up to us.

Q. The arrangement you had was that all on the job training would be done in the team system at CSR? A. That's correct.

Q. We have had Mr Kirkby give evidence, and it was perhaps unnecessary because it was pretty obvious, but that you don't allow Labour Co-op people to come onto the premises and do the training on your machinery? A. No, because they wouldn't have the skill.

Q. Wouldn't have the skill, they wouldn't have the right either, would they, have you ever known that exercise to happen? A. No, not to my knowledge.

40 Denis Anthony Sands did not give oral evidence in the proceedings but a statement made by him on 9 March 1999 during an interview by the prosecutor was admitted into evidence. Mr Sands was a press operator employed by CSR Timber Products and he had held that position for about two years at the time of the subject incident. Mr Sands was a member of the Occupational Health and Safety Committee at the Raymond Terrace premises and he was riding on the footplate of the loading rack when Ms Lister sustained injuries on being pinned between the back end of a press and the unloading rack. As to the occurrence itself, including the role of the defendant and available steps to improve safety by reducing relevant risks, Mr Sands said in his statement : Q26. Why did the accident occur? A26. Julie LISTER's inexperience in the area. Training of new employees is inadequate. The amount of time spent training new employees is not enough, too much is expected too soon. There are exceptions that new employees will pick up the job very fast. I think it is safer to assume that everybody needs more time. At the debriefing after the accident on the 02.07.98, one of the conclusions drawn from the accident was that trainers have to be trained to train new employees. Fatigue for new employees not used to working 12 hour shifts in a stressful environment also needs to be considered.

Q32. Being mindful of Julie LISTER's accident, how did you ensure that no person or no object was in the path of the unloading rack, and that operation of the unloading rack did not present a danger to any person or object? A32. I assumed that Julie LISTER was aware of the movements of the automated racks. Julie LISTER was about an hour or so off being classed as fully trained on that job, that being the "back end person".

Q41. Who was directly responsible for promulgating and implementing the system of work in place on the 01.07.98? A41. I was. I was training her.

Q42. How was this achieved by yourself? A42. On the job verbal instructions and physical demonstrations.

Q43. How did the Labour Co-operative Pty Ltd assess the effectiveness of yourself promulgating and implementing the system of work for "spotting up" the wet lap on Press 4 in the Boardmaking Area? A43. The Labour Co-operative Pty Ltd did not assess me.

Q44. How did CSR Ltd assess the effectiveness of yourself promulgating and implementing the system of work for "spotting Up" the wet lap on Press 4 in the Boardmaking Area? A44. CSR Ltd did not assess me.

Q62. Did that training highlight the hazards of presses and/or automated mobile plant? A62. I highlighted those hazards.

Q63. How long did that training take to be delivered? A63. I was providing her with on the job training throughout that shift.

Q69. What is the extent of your role as a supervisor within CSR Ltd? A69. I'm not a supervisor, I was asked by Gary WALKER to train Julie LISTER to do the job.

Q70. Were you responsible for the supervision of Julie LISTER on the 01.07.98? A70. I was training her, but I was not her supervisor.

Q71. Who was responsible for the supervision of Julie LISTER on the 01.07.98? A71. Gary WALKER and Cleeve MORRIS share the team leader position. But Dennis RANDALL may also have some responsibilities.

Q72. What supervision was Julie LISTER provided prior to the accident? A72. Apart from my involvement in her training, Julie LISTER had no supervision.

Q74. Were either of the Cleeve MORRIS or Gary WALKER, the two shift team leaders, aware of any hazards in relation to the way that Julie LISTER was working on the 01.07.98? A74. They trusted me to provide Julie LISTER with on the job training.

Q84. Did you think that the system of work Julie LISTER was undertaking on the 01.07.98 for "spotting up" the wet lap on Press 4 in the Boardmaking Area was unsafe? A84. No.

Q85. Why did you not think that the system of work Julie LISTER was undertaking for "spotting up" the wet lap on Press 4 in the Boardmaking Area was unsafe? A85. Because I was very familiar and aware of what happens in the area.

Q90. Was there a safer alternative system of work different to the system of work in place on the 01.07.98 that Julie LISTER was functioning by at the time of the accident? A90. Yes, but I was not aware of it at the time the accident.

Q91. What was this safer alternative of work for "spotting up" the wet lap on Press 4 in the Boardmaking Area? A91. By making the "back end person" responsible for pressing the button that sends the loading and unloading racks back to their waiting positions after Press 4 is loaded, which ensures that the "back end person" is out of the way of the moving racks.

Q92. Why was that safer alternative system of work not used on the 01.07.98? A92. Lack of awareness by all those on the job generally.

Q93. Has the system of work changed since the accident? A93. Yes.

Q94. In what way has the system of work changed? A94. By making the "back end person" responsible for pressing the button that sends the loading and unloading racks back to their waiting positions after Press 4 is loaded, which ensures that the "back end person" is out of the way of the moving racks. There is a strobe light fitted at Press 4 above eye level aimed at the post indicating a rack is in motion on that corner. There is a pressure sensitive safety mat installed at the back end of Press 4, protecting anyone standing there by immobilising the racks.

41 The co-team leaders of the workplace team to which Ms Lister was allocated were Gary Fredrick Walker and Cleeve Jack Amos Morris who each gave statements to the prosecutor on 25 March 1999 concerning what occurred. It seems that Mr Randall sent Ms Lister to Mr Walker for training and he in turn allocated her on-the-job training to a team member, Mr Sands. Mr Walker said in his statement : Q19. Why did the accident occur? A19. I think the main reason the accident happened was Julie LISTER's inexperience with the job and the plant. In hindsight, I don't think the accident would have happened if the safety mechanisms were extended at the time of the accident. At the time I thought the safety mechanisms were safe.

Q27. How did the Labour Co-operative Pty Ltd assess the effectiveness of Denis SANDS promulgating and implementing the system of work for "spotting up" the wet lap on Press 4 in the Boardmaking Area? A27. They did not.

Q28. How did CSR Ltd assess the effectiveness of Denis SANDS promulgating and implementing the system of work for "spotting up" wet lap on Press 4 in the Boardmaking Area? A28. They did not to my knowledge.

Q43. Being mindful of Julie LISTER's accident, do you think that the training provided to Julie LISTER was satisfactory, explain your rationale? A43. No, it wasn't long enough. We were told by management, Denis RANDALL, and the Labour Co-operative, I didn't speak to anyone directly from the Labour Co-operative, that we had one day to train Julie LISTER in that job. One day is not enough because when I was learning the job about 6 years ago, you would have a week to two weeks of 8 hour shifts to learn the job. Generally speaking, I think a person needs a full week to learn the job safely and confidently.

Q44. What is the extent of your role as a supervisor within CSR Ltd? A44. I have no role as a supervisor, I am only classed as a Team Leader. There are no supervisors on site any more because of a big lay off about 3 years ago. there are no supervisors, there are self managed teams with Team Leaders.

Q45. How does the role of Team Leader differ from a Team Member? A45. A program gets sent to the Boardmaking Office. Then myself and Cleeve MORRIS let the team know what work is required to be done for the week. Myself and Cleeve MORRIS then organise the work between the team members. I also have to do end of shift reports, shift log books and pass on any information relevant to the team. I don't really know if I have any powers other than guiding and informing other team members. I class myself the same as the other team members except I do the extra administration tasks and informing the team members of what is going on.

Q50. Denis SANDS alleged in his interview on the 09.03.99 that he was asked to train Julie LISTER by Gary WALKER to "do the job", but that he was not her supervisor. What is your opinion about this allegation? A50. I agree that Denis SANDS was not Julie LISTER's supervisor, but was responsible for her training. In my opinion there are no supervisors on site any more and as a Team Leader I am more of a guide and an aid, more than a supervisor. In my opinion we are self supervised teams, not one person with more authority than the others.

Q59. Was there a safer alternative system of work different to the system of work in place on the 01.07.98 that Julie LISTER was functioning by at the time of the accident? A59. With the benefit of hindsight, yes.

Q60. What was this safer alternative system of work for "spotting up" the wet lap on Press 4 in the Boardmaking Area? A60. Basically what we have now, which includes an extended lanyard wire, the bump strip and the pressure pad on the corner where you "spot up" and operate.

Q61. Why was that safer alternative system of work not used on the 01.07.98? A61. Because we didn't realise that hazard existed.

Q62. Has the system of work changed since the accident? A62. Yes.

Q63. In what way has the system of work changed? A63. Changes to the plant itself, there has been a new back up procedure has been written in case the safety modifications go out of service. We also wear high visibility clothing in that area and over the whole site. We also wear hearing protection now.

42 Mr Morris, as a co-team leader with Mr Walker, in his statement gave similar evidence. Specifically, he considered the training period provided to Ms Lister was "too short" and he said that with the team approach to work "there really is no supervisor for the Boardmaking Area". After indicating a belief that the work concerned was safe at the time, he indicated that the following changes had been made to the system of work after Ms Lister was injured : Q59. In what way has the system of work changed? A59. There is now a safety mat on the back end of Press 4, near where Julie LISTER was injured. The racks now have an extended safety wire which runs vertical and horizontal. There are also bumber strips on the edges of the rack where Julie LISTER's head was caught. There is a flashing light above where the Back End person stands to indicate that the unloading rack is moving. We are now wearing fluorescent safety shirts to be seen. We are also now wearing hearing protection in the Boardmaking Area whilst production is operating.

Q63. What steps have been taken by CSR Ltd to prevent a recurrence of the accident? A63. Just the changes I mentioned before as well as proposed longer training for new starters.

43 Mr Dodd, as the defendant's Marketing Manager, gave an extensive statement to the prosecutor on 21 April 1999. Much of the statement was cited earlier in relation to the employment issue, but some of the comments there made are relevant also to the present issue of the defendant's causal connection with what occurred. Additionally in this respect, Mr Dodd as to the training aspect said in his statement : Q102. What training did the Labour Co-operative Ltd request from CSR Ltd for Julie LISTER? A102. How to do the job properly and safely.

Q103. When and by whom was that training given to Julie LISTER by CSR Ltd? A103. The person responsible for training at CSR Ltd on the three shifts that she did work on the 23.06.98, 30.06.98 and 01.07.98.

Q104. Did that training highlight the hazards of presses and/or automated mobile plant? A104. I don't know.

Q105. How long did that training take to be delivered by CSR Ltd? A105. 12 hours on the three shifts.

Q110. Was any additionally training given to Julie LISTER that highlighted the hazards of presses and/or automated mobile plant? A110. Not by the Labour Co-operative Ltd.

Q112. Denis SANDS alleged in his interview that the training provided to Julie LISTER on the 2306.98 and 30.06.98 was in the "Value Adding" area which is completely different to that of the Boardmaking Area. Is this allegation correct? A112. Yes.

Q113. How did the Labour Co-operative Ltd assess the effectiveness of the training provided to Julie LISTER? A113. We did not get the opportunity to make an assessment. Mr Dodd agreed "that the training period was not long enough" but that the defendant did not supervise Ms Lister while she was working at CSR Timber Products because it "would have expected CSR Ltd to provide supervision of our employees to the same standard as they do their own"; however, he did not know who was responsible for the supervision of Ms Lister on 1 July 1998. Specifically as to the ability of the defendant to control what occurred at the Raymond Terrace premises, Mr Dodd gave the following evidence : Q135. Did the Labour Co-operative Ltd have control over the causes of the accident involving Julie LISTER which occurred on the 01.07.98? A135. No

Q136. Why did the Labour Co-operative Ltd not have control over the causes of the accident involving Julie LISTER which occurred on the 01.07.98? A136. Because the work systems, hazard identification and on the job training were all in the control of CSR Ltd personnel.

Q137. Was it practicable for the Labour Co-operative Ltd to have made provision to avoid the accident involving Julie LISTER which occurred on 01.07.98? A137. No because the Labour Co-operative Ltd had provided induction training to Julie LISTER and the Labour Co-operative Ltd had placed Julie LISTER at CSR Ltd with training as the specific reason for her being there.

Q138. Was the accident involving Julie LISTER which occurred on the 01.07.98 foreseeable by the Labour Co-operative Ltd? A138. No because of the training provided to Julie LISTER by the Labour Co-operative Ltd, the training Julie LISTER should have been receiving from CSR Ltd and the previous safe operation of this machinery for over a decade.

Q139. What steps have been taken by the Labour Co-operative Ltd to prevent a recurrence of the accident? A139. The Labour Co-operative Ltd was aware of changes being made to the plant at the direction of WorkCover, we would have been satisfied with these improvements, but as CSR Ltd is no longer a client we are no longer supplying labour to that site.

44 Finally on this aspect of the causal relationship in the context of the alleged safety risks, Dr David Douglas, a consultant in occupational health, safety and environment, was commissioned by CSR Timber Products to conduct an investigation of the subject incident. Dr Douglas did so by visiting the Raymond Terrace site on 3 July 1998 and he prepared a report of his findings and recommendations thereon. The report, which was admitted into evidence, extensively reviewed the circumstances by describing the work processes and the incident itself, analysing the immediate and underlying causes and making recommendations for improvements. Relevantly for present purposes, included amongst the underlying causes of the incident and what I perceive to be "risks" to safety were the following -

· Use of casual labour. · Casuals hired by the defendant - adequate job task analyses for recruitment of suitable persons were not provided. · There was no information on health, fitness or past employment history and experience of new casuals recruited by the defendant. · The off-site induction provided by the defendant was not job specific; there was no test of comprehension. · The on-site induction and initial training were inadequate because of their brevity over only two days and without written job safe practices or current work instructions. · Ms Lister, whilst a keen trainee, was likely to have had little recent industrial experience and her keenness and apparent quick learning may have increased the perception of competency amongst those members of the team responsible for her supervision and training. In the result, Dr Douglas made the following relevant recommendations -

· CSR Timber Products should undertake detailed job task analyses of all jobs for use by the defendant in selection criteria. · The defendant should give a brief resume of the casual employee's experience and competency to CSR Timber Products. · The continued reliance on casual labour requires greater effort in task specific induction which must not be delegated to a labour hire firm, such as the defendant. · On-the-job induction and safety training must be documented and formally assessed by questionnaire and demonstration. · A formal on-the-job induction programme requires a specified time period of assignment to a "buddy", or on-the-job trainer, and formal testing of competency. · Two days does not appear to be sufficient training for work in the Boardmaking Area on the press floor. · Up-to-date work instructions should be developed for all tasks in the area. · The level of supervision of casual or inexperienced employees must be commensurate with the risk and complexity of the task to be performed. · The task being performed here by Ms Lister when she was injured will require closer supervision when a casual employee is performing it. · If casual employees, such as Ms Lister, are to be used then a permanent pool of casuals should be developed containing persons trained to an appropriate level and supervised closely.

45 The nature of the liability created by s 15(1) of the Occupational Health and Safety Act was extensively reviewed by a Full Bench of the Court (Wright J, President and Walton J, Vice-President, with whom Peterson J agreed) in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at pp 449-452 by reference to the developed authorities, namely: Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at pp 469-470; McMartin v Broken Hill Proprietary Co Ltd (1988) 100 IR 241; Italo Constructions Pty Ltd v Parkes [1988] 24 IR 428; Cullen v State Rail Authority of New South Wales [1989] 31 IR 207 at p 209; State Rail Authority of New South Wales v Dawson [1990] 37 IR 110 at pp 120-121; Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at pp 49-50; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at p 156; WorkCover Authority of New South Wales (Inspector Piggott) v Capral Aluminium Ltd (1998) 82 IR 468 at p 478; WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 at p 85; and WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119. I was required to review this general position in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 and from which review of the cited authorities I drew the following propositions (104 IR at pp 288-289) - (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence. Relevant to this second issue in the present case as to causal connection are the propositions above-stated in pars (1), (2), (4), (7) and (9).

46 The position taken by Mr Skinner was that the evidence was clear to the effect that all of the alleged risks to safety existed and where the defendant provided only general training by way of an induction and basic occupational health and safety instruction; sufficient and appropriate supervision simply did not exist. For his part, Mr Macken focussed upon the inability of the defendant in a practical sense to intervene to prevent the accident to Ms Lister because, as he said, "the team did not allow intervention by an outsider, CSR had never tried to introduce outside intervention". Counsel emphasised that during the training period when the incident occurred Ms Lister "was beyond the reach" of the defendant and within the control of CSR Timber Products.

47 The nature of the responsibility of labour hire firms, like the defendant here, for liability to ensure the health, safety and welfare of their employees performing work at client's premises was considered by me in WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd t/as Drake Industrial (No 1) (1997) 89 IR 374 at p 382 in the following way : The failures here to ensure the safety of Mr Douglas arose in a situation where he was directed by his employer, the defendant, to perform work for a third party, Warman, at that third party's premises. In such a situation, my view is than an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned. ...

It is no answer, in my view, in reduction of penalty otherwise considered appropriate for the defendant to plead reliance on Warman as the client to take appropriate steps to ensure safety in the workplace for all persons engaged at its premises. True it may be that Warman itself may have offended against the Occupational Health and Safety Act , but that does not, it seems to me, lessen the seriousness of the offences committed here by the defendant as the employer.

48 In WorkCover Authority of New South Wales (Inspector Dubois) v Industry Staffing Services Pty Ltd t/as Action Workforce (1999) 89 IR 430 at p 433 I again had occasion to consider the liability of a labour hire company for the safety of its employees and applied the above approach as stated in Ankucic v Drake Industrial. That approach was considered by the Full Bench in the later case of Ch'ng v Drake Industrial where the majority of Wright J, President and Walton J, Vice-President commented (90 IR at p 456) The observations of Hungerford J set out above were made in the context of determining the appropriate penalty to be imposed following a plea of guilty. However, we consider that they are equally applicable when considering the liability of a labour hire company under the OH&S Act. A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

49 In the instant case, I am wholly satisfied on the evidence that risks to the safety of Ms Lister existed on 1 July 1998 when she was working in the Boardmaking Area at the Raymond Terrace premises of CSR Timber Products as alleged in the summons. Those risks, which resulted in her sustaining injuries, were within the responsibility of the defendant to ensure against and it is no answer, in my view, for the defendant to say it relied upon CSR Timber Products to safely train and supervise Ms Lister. The duty of care in this respect under s 15(1) of the Occupational Health and Safety Act is non-delegable and it is properly the responsibility of the employer, the defendant here, to have so intervened in its relationship with CSR Timber Products to obviate the identified detriments to safety. Its failure to do so makes out the offence. It was suggested for the defendant that it had no "right" to intervene in the operation of the work teams and it was even suggested from the evidence that the defendant had no knowledge or expertise of the work to be performed at the Raymond Terrace premises sufficient to enable it to instruct, train and supervise Ms Lister. In my view, that only has to be stated, having in mind the absolute duty imposed on the defendant as a labour hire company, to make out the charge that it failed to ensure Ms Lister was secure at the workplace to which it sent her; that failure, in my view, was a failure by the defendant so that it was causally related, I think in a direct sense, to the safety risks faced by her in the work area and about which the defendant took no steps in its arrangement with CSR Timber Products to correct.

50 I turn now to the third aspect argued, that is, the reliance by Mr Macken on the defence under s 53 of the Occupational Health and Safety Act. Counsel's succinct submission in that respect was as follows : I put it to the inspector that there was no reasonable practical way the Co-op could have intervened to prevent the accident, and he agreed with that. I took that from s 15, and the team did not allow intervention by an outsider, CSR had never tried to introduce outside intervention, and the Inspector did not even allege there should be any intervention in the performance of work by Julie Lister, but only said, they should have been there to monitor it, without explaining how that could be done and, though Mr Kirkby said that was not impossible, the evidence was from him, it was as close to impossible as anything could be. CSR wouldn't allow Labour Co-op people to walk onto their premises and supervise, with the team system as it was, that team would probably come straight down to this Commission, if they had found they were under some external supervision, and no reasonably practical course was open to the Labour Co-op to intervene to prevent the accident.

51 The s 53 defence may be called in aid in two situations: first, it was not reasonably practicable in the circumstances for the defendant to have complied with the obligation imposed on it (see par (a)); or, second, the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable for it to make provision (see par (b)). The propositions referred to above in pars (11) and (12) as stated from Keelty v Police Service (No 2) (104 IR at p 289) are relevant to this aspect.

52 I am of the view that the s 53 defence may only be considered, in the circumstances of this case and in light of the way it was argued, as inseparable from the causal connection question. In that respect, the unchallenged report by Dr Douglas identified various underlying causes of the incident in terms of the lack of adequate instruction, training and supervision and recommended improvements by specific steps as would affect instruction, training and supervision. I do not further particularise those matters as that would be merely repetitive and they are set out in detail above. Suffice it to say that a perusal of the other evidence in the proceedings given by persons such as Mr Dodd, Mr Walker, Mr Morris and Mr Sands was directly reflected in Dr Douglas' report as to the underlying causes (risks to safety) and recommendations for improvements. I am satisfied that if those measures had been implemented then the present risks to safety would not have existed. Further, I am well satisfied that it was reasonably practicable for the defendant to have ensured against such risks by adopting a positive and pro-active approach with CSR Timber Products to require steps be put in place to avoid the risks as a condition of it making available the services of Ms Lister.

53 Although, of course, CSR Timber Products had the control of the premises at Raymond Terrace and in a physical sense was the entity to make any changes, nevertheless the defendant in relation to the risks here as to instruction, training and supervision had a very real measure of control to ensure such matters were adequate and so as not to create a risk to safety - that measure of control was simply a refusal to supply its employees to CSR Timber Products until appropriate and sufficient measures to ensure safety were implemented. As the majority observed in Drake Industrial v Ch'ng (90 IR at p 456), "... a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. ... to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe".

54 The defendant has failed to make out a defence under s 53.

55 I find the offence proven. __________________

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