OCCUPATIONAL HEALTH & SAFETY · Employment Lawyers Sydney The changing landscape of labour organisation presents new and interesting challenges for the regulation of workplace safety

36 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #91 JULY/AUGUST 2003

OCCUPATIONAL HEALTH & SAFETY

MANAGING OCCUPATIONAL HEALTH AND SAFETY OF ON-HIRED EMPLOYEES IN THE LABOUR HIRE INDUSTRY IN NSWKelly GodfreySenior AssociateSolicitor and Notary PublicEmployment LawyersSydneyThe changing landscape of labour

organisation presents new and interesting challenges for the regulation of workplace safety. A proliferation in outsourcing and deregulation has resulted in an increasing reliance on labour hire arrangements to satisfy labour requirements. The current Occupational Health and Safety Act 2000 (NSW) (‘the Act’) and Occupational Health and Safety Regulation 2001 (NSW) (‘the Regulations’), predicated on outmoded notions of ‘employment’ (together with associated concepts of ‘employer’ and ‘employee’) are presently ill-equipped to deal effectively with such atypical working relationships. Whilst the current legislation is relatively new, in light of this reorganisation of labour, further consideration and reform is required. This paper will examine the management of occupational health and safety of on-hired employees in the labour hire industry in NSW. The proliferation of labour hire, the current workplace safety obligations and options for reform will be discussed.

THE PROLIFERATION OF LABOUR HIREThe Modern Trend of Labour HireThe utilisation of labour hire constitutes part of a growing trend in both the public and private sectors towards ‘vertical disintegration’, with business outsourcing its labour requirements.1 Motivated by economic and financial concerns organisations have sought to cut costs and reorganise their labour in an effort to remain productive and competitive. This reorganisation of labour has caused significant problems for the regulation of occupational health and safety given its predilection with the traditional full-time employment structure.2

There are now in excess of 1000 labour hire companies in Australia

with more than a quarter of Australian businesses utilising labour hire.3 It is now the largest employing entity in Australia with one in every five employees in an on-hired arrangement.4 In response to the impact of globalisation, business has evolved from a mechanistic hierarchical arrangement to a more flexible ‘organic organisational structure’, in which a small number of full-time permanent employees are employed and additional labour engaged, to supply services, equipment or expertise, as and when required.5 ‘Sociocultural developments’, in terms of changes in the labour force and preferences of particular categories of workers, have also been a driving force behind the reorganisation of working relationships.6 The changing structure of work not only affects the character and type of risks which exist in the workplace but also has implications for procedures developed to manage those risks.7

Characterising and Defining Labour HireToday labour hire companies provide a diverse range of services which may include:

On-hired Employee Services, which involves the on-hire of employees of the labour hire company to the host organisation under a contract of service;

Direct Contractor Services, which involves the brokering of contract arrangements under a contract for service, in which the contractor and client then form their own contractual relations;

Managed Project or Contract Services, which involves the performance of a project or outsourced non-core business function for a client. This typically involves the service provider directly engaging the labour (employees and/or contractors) and providing all other necessities to complete the contract or

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project;

Recruitment Services, which involves the introduction of suitable candidates to satisfy the client’s employment needs, on a fee for service arrangement; and

Employment Consulting Services, which involves the identification and implementation of workplace strategies to meet the client’s requirements.8

The most pertinent of these for the purposes of this paper is the on-hired employee arrangement. This involves a triangular working relationship between the labour hire company (as the employer), the worker (as the on-hired employee) and the host organisation (as the client or third party), whereby the labour hire company contracts with the host to provide labour services. The provision of labour services can be of any duration with the work generally carried out at the host’s premises under their supervision and direction. Whilst in the on-hired employee arrangement the worker is employed and remunerated by the labour hire company, they generally have little other contact, given the host usually exercises practical control of the placement.9

Discerning whether an on-hired employee or other labour hire arrangement exists can often be a difficult exercise. Depending on the nature and characteristics of the relationships between the parties, the contracted worker’s status can vary from that of an employee, to that of a dependent or independent contractor. The dependent contractor relationship involves a contemporary form of labour arrangement in which the contractor, whilst having the appearance of an independent contractor performs an employee type function, dependent upon a single client for the provision of work. In contrast the independent contractor sources their work

from a variety of clients.10 It is this complexity in the organisation of labour within the labour hire industry which presents difficult challenges for government not only in the regulation of occupational health and safety, but employment and industrial relations in general.11

Workplace Injuries in the Labour Hire IndustryThe evidence in both Australia and overseas reflects a disproportionately greater representation of labour hire employees suffering workplace injuries than ‘employees’ in the traditional sense of the word. The prevalence and severity of such injuries continues to escalate as modern enterprise continues the progressive trend toward outsourcing its labour in response to globalisation and economic demands.12 In 2000/2001 workplace injury claims cost the labour hire industry $31 million.13 These costs comprise, amongst other things: a decline in productivity rates; compensation; lost production; lost income; increased insurance premiums; lost time; loss of reputation, industrial disputes; low morale and monetary penalties.14

A recent analysis of workplace injury claims suffered by on-hired employees in Victoria, reflects the overseas experience, revealing:

a higher proportion are undertaking work in the traditionally more dangerous blue collar unskilled and semi-skilled occupations of production, transport, labouring and trade related work than their non-labour hire counterparts;

they have a higher incidence of muscular strain injuries arising from heavy manual handling tasks involving prolonged periods of repetitive work;

an increased prevalence of injuries caused by moving objects,

often involving crushing, cutting, rolling, pressing, mincing and sawing machinery;

a greater propensity for injuries caused by slips, trips and falls when the assignment requires mobility;

a higher incidence of repetitive strain injuries for clerical workers;

a higher number of claims by workers under twenty-five years of age than those of non-labour hire workers; and

that labour hire workers require greater periods of recuperation, commonly up to one year in duration after workplace injuries, than their fellow non-labour hire workers, suggesting that their injuries may not only be more severe but that such workers may experience problems with their rehabilitation and ability to access lighter duties in returning to work.15

An appreciation of the likely causes of such injuries is vital in considering what legislative reforms and other assistance is required to assist in the management of occupational health and safety issues in the labour hire industry. Research reveals such injuries, amongst others, may arise from:

inadequate tuition in the general and specific tasks assigned to labour hire workers;

insufficient training in occupational health and safety or simply a failure of these systems where their success relies on the commitment of permanent workplace employees;

a failure by the respective parties to assess the occupational health and safety risks of the host’s premises when placing labour hire workers;

inadequate knowledge of the tasks to be performed;

a general failure to supervise the performance of work;


unfamiliarity with the workplace;

lack of experience and training with the equipment or machinery to be utilised in the placement; insufficient appreciation for the risks associated with the allocated tasks;

younger, usually less experienced and less qualified labour hire workers performing high risk tasks;

an inability for labour hire workers to have input into the way in which work is performed, especially in circumstances in which they are not adequately represented in the workplace;

the reticence of labour hire workers to raise occupational health and safety concerns owing to the often precarious nature of their employment;

a lack of training in correct manual handling techniques;

a propensity to assign labour hire workers repetitive heavy lifting tasks;

a breakdown in the exchange of information between labour hire companies and host organisations, resulting in the incorrect allocation of workers undertaking tasks for which they are not sufficiently skilled;

confusion between the labour hire company and host organisation as to responsibility for occupational health and safety issues;

the misperception by many businesses that they have contracted out of their workplace health and safety responsibilities by engaging labour hire workers;

host organisations redirecting labour hire workers to perform tasks other than those for which they were engaged;

disorganisation and confusion in the host organisation’s workplace particularly in the assignment of responsibility for decision making

do not always have the same significance…’22

It is for this reason that employment relationships have been found to exist between the host and the worker23 or the labour hire company and the worker despite the existence of an Odco contracting arrangement.24 However, as the Odco decision does not raise any new principle of law, a contract of employment may nevertheless be found where such an arrangement exists.25

The Duties of the Labour Hire ParticipantsThe legislation and case law provide guidance as to the extent and nature of the occupational health and safety obligations of the parties in the on-hired employee labour hire arrangement.

Duties owed by the Labour Hire CompanyIn the on-hired employee arrangement, the labour hire company, as the worker’s employer, has a duty (pursuant to s.8(1) of the Act) to ensure the health, safety and welfare of its employees when they are at work.26 This duty includes, but is not limited to, the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health;

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used;

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health;

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work; and

and accountability;

increase workloads and economic pressures to perform the work at a faster pace, resulting in short cuts involving risky work practices and a failure to observe safety precautions; and

a propensity to delegate more dangerous, high risk tasks to labour hire workers.16

OCCUPATIONAL HEALTH AND SAFETY OBLIGATIONS OF LABOUR HIRE PARTICIPANTSThe Nature of Labour Hire RelationshipsThe occupational health and safety obligations of the participants in the triangular labour hire arrangement depends on the nature of the respective parties’ associations. However, there is often ambiguity as to the reality of these relationships. Regardless of the labels the parties place on their associations the judiciary itself applies its own multi-factor test, examining the ‘totality of the relationship between the parties’.17 Whilst the extent of control remains an important consideration it is not the determinative factor, with greater emphasis placed on ‘the legal right to control, rather than the practical fact of control’18, in recognition of the evolving nature of contemporary employment relations.19

Essentially as a question of fact and judicial characterisation the exercise is not amenable to a ‘mechanical application of the words of earlier decisions’20, nor to the application of any exhaustive list of relevant factors and the weight to be assigned to each. With each case dependent upon the ‘industrial and economic realities behind the contractual façade’,21 the answer to the ultimate question ‘may be indicated in ways which are not always the same and which


(e) providing adequate facilities for the welfare of the employees at work.27

The on-hired employee’s place of work (broadly defined in s.4 of the Act) includes every area which may be affected by the conduct of the employer’s business or enterprise28, which may be of a permanent or temporal nature.29 In the labour hire arrangement the on-hired employee’s place of work will be the premises of the respective host organisations which contract for the employee’s services.

Subject to the defences outlined in s.28 of the Act, the obligations imposed by s.8 are absolute in nature, requiring that employers ‘guarantee … secure … or make certain’ that the health, safety and welfare of their employees is protected at work.30 As the duty is ‘both preventive and remedial in nature’ merely exposing one’s employees to ‘potential danger’ is sufficient to constitute a breach.31 However, for liability to be established there must be a causal connection ‘between the breach of statutory duty and detriment occasioned’.32

Furthermore, as an employer the labour hire company must also satisfy the comprehensive range of employer obligations outlined in the Regulations. These include, amongst others: the identification and management of workplace hazards; workplace consultation; the use of places of work; manual handling; working with plant; the use of hazardous substances; hazardous processes and construction work. Some of these will be discussed in further detail below. However, it is important to realise that despite the plethora of obligations imposed by the Regulations, compliance is not in itself a defence. A failure to comply constitutes an offence which is admissible in any proceedings for breach under Part 2 of the Act.33

In circumstances where the

labour hire company is the employer it cannot rely on the host organisation to ensure the health and safety of its employees. It has a non-delegable duty to ‘take positive steps to ensure that the premises to which its employees are sent do not present risks to health and safety’.34 This includes a duty to ‘directly supervise and monitor the work of the employee to ensure a safe working environment’ and may ‘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’.35 Furthermore, the labour hire company cannot, rely on any contractual obligation between itself and the host, that it receive prior notification before its employees undertake alternate work, to escape liability.36

The amount of supervision required to be undertaken by a competent person, depends upon the type of work involved, as well as the age, experience and competence of the employee.37 However, the labour hire company, as an employer must ensure that it’s employees are provided with reasonable supervision necessary to ensure their health and safety.38 This includes a duty to protect an employee from risks which may arise due to the employee’s own carelessness, inadvertence, foolishness or negligence.39 Furthermore, merely instructing an employee not to perform a particular task will not necessarily absolve the employer from liability for a failure to supervise. This is especially so in circumstances where the employees have access to the necessary equipment and the opportunity to undertake the work.40

As an employer the labour hire company must adopt a proactive risk management approach to work safety.41 This involves the employer undertaking an adequate risk assessment to

ensure their employees are not exposed to risks, this being a task which cannot be delegated to others.42 This proactive duty is further enforced by the obligation imposed by Chapter 2 of the Regulations, requiring the labour hire company to perform a comprehensive risk assessment. This requires them to: identify all foreseeable hazards that might arise from the conduct of their business; assess the risks of those hazards and where reasonably practicable eliminate those risks or otherwise control them.43 They must also provide anyone who has such responsibilities under the Regulations with all information necessary for them to fulfill those responsibilities.44

To enable the labour hire company to undertake an adequate risk assessment it must obtain such information from an authoritative source as is necessary to enable it to fulfill its responsibilities.45 This would logically include sourcing information from the host, (given the work is conducted at their premises) and presumably their own on-hired employees (given they are the ones who will be performing the work). The labour hire company also has an obligation to review the risk assessment as well as any measures adopted to control the risk.46

The labour hire company must also provide instruction, training and information to their on-hired employees (as well as any other person exposed to risk at the labour hire company’s place of work) as is necessary to ensure their health and safety.47 The labour hire company also has a comprehensive and extremely broad duty to consult with its labour hire employees on occupational health and safety as well as welfare matters.48 Whilst there is no duty to ‘negotiate’ or accept their views, employees must be given an opportunity


to express them and for those views to be valued and taken into consideration.49 ‘[C]onsultation needs to be real; it must not be a merely formal or perfunctory exercise.’50 In determining the group of employees that is to be represented by an occupational health and safety committee or representative the labour hire company must take into consideration the diversity of employees and the work undertaken.51

Duties owed by the Host OrganisationThe host organisation which is generally itself an employer, owes a duty (pursuant to s.8(2) of the Act) to ensure that others (including labour hire employees) are not exposed to risks arising from the conduct of the host’s undertaking whilst at it’s place of work. The host may also owe a duty to labour hire employees as a controller of work premises, plant or substances, (pursuant to s.10) or as a self-employed person, (pursuant to s.9).

Given a ‘self-employed person’ is not restricted to a natural person, but includes an ‘individual, corporation or a body corporate of politic’, by the operation of s.21 of the Interpretation Act 1987 (NSW), it is arguable that a host, who is not itself an employer (and thereby not caught by s.8(2)) may nevertheless owe a duty to non-employees (such as labour hire employees) pursuant to s.952 whilst they are at the host’s place of work.53

The duty of a self-employed person is similar to the employer’s duty to non-employees whilst at their place of work (see s.8(2)). However, the s.8(2) duty requires that the host be an employer.54 For the risk to arise from the conduct of either the employer’s or self-employed person’s undertaking it must occur:

[I]n the course of [them] carrying

commensurate to the level of risk.61

If the host organisation is also an employer they will also be bound by the consultation obligations outlined in s.13 of the Act and Chapter 3 of the Regulations. As such they will be obliged, pursuant to clause 27(1)(h), to facilitate the occupational health and safety consultation arrangements of the labour hire company (as another employer) in circumstances where the on-hired employees will be working at the host’s place of work. Where the occupational health and safety consultation arrangements allow for either an occupational health and safety committee or representative, both the host organisation’s and labour hire company’s employees will need to be consulted by their respective employers about the relationship between the representatives of the workgroups of each employer.62

Subject to certain limitations outlined in s.10(3) of the Act, if the host company has control (limited or otherwise, see s.10(4)(a)) of either the premises, plant or substances used by the on-hired employees it has, subject only to the defences contained in s.28, an absolute duty to ensure that the premises used by the on-hired employees as a place of work, as well as the plant or substances used by them at work, are safe and without risk to health.63

The duty will not arise if the premises are occupied only as a private dwelling nor to any plant or substances used in same.64 Furthermore, it will only apply if the premises, plant or substances are controlled by the host in the course of their trade, business or another undertaking, whether or not for profit.65 Otherwise ‘place of work’ and ‘at work’ have the same broad meanings as discussed above with respect to ss.8 and 9 of the Act, which can be of a temporal or permanent nature.66

Control is not in the sense of ‘mere

on [their] business or enterprise … which may be seen to be … performing work or providing services at one or more places, permanent or temporary and whether or not possessing a defined physical boundary. The circumstances [are] as infinite as they [are] variable.55

The employer’s or self-employed person’s ‘place of work’ (which has received the same broad interpretation as that discussed above with respect to s.8(1)), can be a place of work of multiple employers all of whom conduct an undertaking thereon.56 As required with respect to the employer’s duty under s.8(1), for liability to be established under either s.8(2) or s.9, a causal connection must be established.57

The host organisation as an employer, is required to comply with all the obligations of an employer as exist under the Regulations. As these obligations largely apply to both the employer’s own employees, as well as other persons at their place of work, the host, as an employer, must discharge similar obligations to that of the labour hire company with respect to the same on-hired employees.58 Furthermore, given clause 3 of the Regulations includes a self-employed person within the definition of ‘employer’ for the purposes of Chapters 2 and 4–8 of the Regulations, the host, even as a self-employed person, must satisfy similar obligations to that of the labour hire company.

Hence the host organisation’s obligations include, but are not limited to, undertaking risk assessments59 and providing instruction, training and information to any person who may be exposed to a risk to health and safety whilst at the host organisation’s place of work.60 The content, extent and timing of such instruction, training and information must be


“sway”, “checking” or “restraint” but rather … in the sense of “directing action” or “command”—the ability of a person to compel corrective action to secure safety’.67 Whilst control can be shared and be of varying degrees68, it can be totally transferred enabling the person to divest themselves completely.69 While both ‘plant’ and ‘substance’ are defined in s.4 of the Act, ‘plant’ has been broadly interpreted to include ‘the multiplicity of machinery and equipment which may be employed at a workplace’.70 As with the duties contained in ss.8 and 9 of the Act, for liability to be established under s.10 a causal connection between the breach and detriment must be established.71

In ascertaining whether the host has control the court will examine, amongst other things:

its ability to direct or command the on-hired employees to implement policies, work practices or control performance;

the contract between the host and labour hire company;

the state of the premises prior to commencement of the work; and

whether it has the ability to compel the labour hire employees to take corrective action to secure safety.72

The host company as a controller must also engage in risk management strategies which include: the identification of foreseeable hazards; the assessment and review of risks; the elimination or control of same; as well as the provision of information to the labour hire company as an employer to enable them to fulfill their workplace safety responsibilities.73

Alternative VerdictsIn recognition of the difficulties in characterising some of the modern working relationships, the alternative verdicts provision contained in s.30 of the Act

enables the court to convict a person charged with an offence under either s.8 or s.9 of the Act, to be convicted of an alternate offence under these provisions should the court be satisfied that a contravention has occurred. Whilst removing the classification of the working relationship as a necessary requirement for the purposes of establishing whether a breach has occurred, one must nevertheless ascertain whether the risk to health and safety occurred due to the acts or omissions of an employer at their place of work or otherwise.74

If it is accepted that a host organisation can be a self-employed person for the purposes of s.9 of the Act, as discussed above, then it may be possible to utilise the alternative verdicts provision in circumstances where proceedings have been incorrectly instituted against the host under s.8(2), when it is not itself an employer.75

Duties owed by the On-hired EmployeesThe on-hired employees of the labour hire company owe a duty under s.20 of the Act to not only take reasonable care for the health and safety of others whilst at their place of work, but also to co-operate to the extent necessary, to facilitate compliance with any occupational health and safety requirements of either their employer or the host.76

In contrast to the duties contained in ss.8–11 of the Act the duty is not absolute and the employee ‘can only be called to account for [their] own acts or omissions … [and] … cannot be treated as … a surrogate for the wider responsibilities of … [others].’77 The reasonableness or otherwise of the employee’s conduct is assessed objectively by the standard of a reasonable employee in the circumstances of the case.78

Whilst s.20 does not impose a duty

to warn, employees are required by clause 28(1) of the Regulations to:

[T]ake reasonable steps to prevent risks to health and safety at work by notifying [their] employer or supervisor of any matter that, to [their] knowledge, may affect the capacity of their employer to comply with [their] requirements [under the Regulations].

This obligation can be discharged by notifying the relevant occupational health and safety delegate in accordance with the consultation arrangements.79

DefencesIf a defendant to any proceedings under the Act can prove on the balance of probabilities that it was not reasonably practicable for them to comply or that the breach was caused by circumstances beyond their control and against which it was impracticable to take precautions, they will escape liability.80 Despite being a civil onus it is ‘a substantial onus nevertheless’.81 Consistent with the purpose of the Act, reflecting increasing community concern for workplace health and safety, the defences are narrowly construed.82

‘Reasonably practicable’ necessitates a weighing up of the risk, in terms of its likelihood and severity, against the expense, time and effort of taking precautions.83 If ‘there is a gross disproportion between them—the risk being insignificant in relation to the sacrifice—the defendants discharge the onus on them.’84 Whilst there is an element of reasonable foreseeability it is strictly construed and prescribes a much higher standard of care than required by the common law.85 There must be evidence of an effective system of safety which is maintained and enforced. Paper systems will not suffice, nor will evidence of employee disobedience necessarily expunge liability.86

Complexity and Duplicity


As the above analysis of the respective duties of the labour hire participants indicates the occupational health and safety obligations are complex, onerous and in many instances duplicitous. It is because of this complexity and duplicity that confusion and frustration has arisen in the labour hire industry resulting in non-compliance and inevitably detrimental consequences. Whilst the Regulations clearly envisage that the parties discharge their respective duties in a co-ordinated manner,87 the evidence is that this often does not occur. Reform is required and suggestions for change will be discussed below.

Health and Safety Considerations for the Labour Hire IndustryThe legislation and case law provides guidance as to the extent and nature of the occupational health and safety obligations owed by the participants in the labour hire arrangement. Given these responsibilities are dependent upon: the particular type of work undertaken; the conditions under which the work is to be carried out; the experience, education and training of the worker; as well as other pertinent factual matters, it is difficult to provide any universally applicable list.88

However, as an indication only of the type of considerations the labour hire company and host should consider prior to engaging the worker in an on-hired employee arrangement include:

undertaking an assessment of whether the worker has sufficient skills, training and experience to perform the required task and whether further training and instruction is required;

the performance of a detailed risk assessment and identification of all risks connected with performance of the task;

strategies to control as far as practicable any risks associated with the task;

the adoption of effective systems of safety which are maintained and enforced;

the establishment of systems to regularly examine and review each parties’ respective occupational health and safety obligations and performance of same, through assessments, inspections, audits and reviews;

induction of the worker into the host’s workplace;

providing additional instruction, information or training as required;

ensuring that the worker receives appropriate supervision and monitoring whilst performing the task and determining what role each party will play in discharging their respective duties;

ensuring that the worker will only undertake the tasks they are qualified, trained and engaged to perform and that the systems for performance of those tasks are safe;

providing the worker with an opportunity to consult and be consulted by the labour hire company and host with respect to safety issues; and

educating the worker as to what steps they should take when workplace health and safety issues arise.89

OPTIONS FOR REFORMThe Failure of the Current SystemWhilst certainly a modernisation and improvement on its predecessor, having been restructured and refined to enhance comprehension, the new Act is not significantly different to that of its predecessor. The objects of the Act have been refined to promote the preventative risk management principles and provides the foundation to support the introduction of proactive safety management systems. The Act now requires consultation and meaningful

discussion on workplace safety and provides an innovative range of alternate sanctions to encourage compliance.90

However for all its advances the Act is unlikely, at least from a labour hire industry perspective to provide the envisaged ‘framework for workplace safety in the new technological era’.91 Nor does it adequately ‘meet the challenges posed by the changes in the workplace over the last twenty years’.92

The complexity of the organisation of labour within the labour hire industry presents both prosecutional challenges and legislative difficulties for the regulation of occupational health and safety. ‘[C]omplex inter-organisational arrangements … can be abstruse, opaque and expensive to regulate’ and can ‘create difficulties in correctly identifying responsible parties … when conducting prosecutions.’93 This coupled with an inherent failure of the respective parties to fully appreciate the extent of their respective occupational health and safety duties and obligations demonstrates the flaws of the current legislation.

Whilst there is a greater appreciation amongst employers as to the extent of their occupational health and safety responsibilities to their own employees, confusion abounds as to the duties owed to agency workers and contractors. While the law does not permit the delegation of duties, where the participants have concurrent and overlapping obligations misunderstandings often arise. In the labour hire industry there is an endemic psychological transference of occupational health and safety obligations, if not a legally permissible one, with each party insisting the other is better placed to manage health and safety issues. Where the tripartite


working relationship exists the parties must adopt a co-ordinated and co-operative approach to the management of occupational health and safety.94

Whilst it is arguable that the current legislative structure does not presently provide the ideal framework for the regulation of occupational health and safety issues in the labour hire industry and that the recent reforms were not sufficiently innovative to take account of this atypical form of labour arrangement, the increasing interest in this issue provides promising indications for change.

The Act itself envisages that it be reviewed five years from the date of assent (that is around 26 June 2005) to ‘determine whether the policy objectives … remain valid and whether the terms of the Act remain appropriate for securing those objectives.’95 Critics claim that the only obstruction in this process for reform will be the blinkered ‘philosophical opposition to third party employment arrangements’ of both government and representative associations who focus on the complexities rather than the many opportunities such arrangements provide.96 However, where the relationship is a tripartite one it is only ‘natural that labour legislation designed to govern bipartite situations must be adjusted in some way…’97

The Oversea’s ApproachA diverse range of regulatory methods have been adopted by countries overseas to address the Occupational Health and Safety obligations of the labour hire industry. The majority assign primary responsibility for occupational health and safety to the labour hire company. Only Canada and a small number of European Union countries (Ireland, Portugal, Austria and Luxembourg), have designated

absolute responsibility on the host, despite European Union Directive 91/383/EEC supporting this development. Article 5 of the Directive also permits its members to ban the use of labour hire workers for high risk work. In this respect Germany prohibits the performance of construction work; Belgium bans construction, graphical and textiles; Italy vetos dangerous work as defined; France bars public administration and dangerous work as defined; and Spain disallows mining, building and high-risk work which involves amongst others, contact with carcinogens, biological agents, explosives and work on offshore rigs.98

The United Kingdom through the Management of Health and Safety at Work Regulations 1999 (UK) (‘the Management Regulations’) and the forthcoming Conduct of Employment Agencies and Employment Businesses Regulations 2001 (UK) (‘the Conduct Regulations’) which are expected to take affect later this year, comprehensively proscribe the specific occupational health and safety obligations of the labour hire company and host. However, these regulations do not affect the Employment Agencies Act 1973 (UK), which assigns principal responsibility for the health and safety of labour hire workers on the labour hire company.99

Under the Management Regulations the labour hire company is required, amongst other things, to:

undertake a risk assessment of the host organisation’s workplace (Reg.3);

assess the worker’s abilities with respect to health and safety issues;

ensure that their workers are properly trained and educated on workplace safety matters and that this training is updated and enforced as new risks arise

(Reg.13);

clearly explain to workers any special training, education or qualifications they may require to safely perform the work, as well as whether any monitoring of their health will be required (Reg.15); and

provide workers with any information provided by the host, concerning any particular skills or experience which may be required to perform the work safely (Reg.15).100

The Management Regulations also require that the host organisation, amongst other things:

undertake a risk assessment for those non-employees who are likely to be affected by the conduct of their undertaking (Reg.3);

provide labour hire workers with clear information on: any risks to their safety arising out of or in connection with the conduct of their undertaking (Reg.12); the steps undertaken to fulfill their legislative obligations with respect to labour hire workers (Reg.12); any special skills or qualifications they may require to perform the work safely (Reg.15); and any specific aspects of the task which may affect their health and safety (Reg.15); and

ensure that labour hire workers performing work at their premises are provided with clear and sufficient information concerning any risks to their health and safety (Reg.12).101

The Conduct Regulations indicate that the labour hire company will be prohibited from supplying a worker unless it:

has sufficient information (concerning: the nature of the work; the location; the duration; any workplace risks; and any experience, training, ability, qualifications and authorisations required to undertake the work) from the host to enable it to


chose an appropriate person to undertake the work. At first instance this information must be provided verbally to the worker and then confirmed in writing within two days of receipt (Reg.18).

has received sufficient information from the worker that they have the experience, training, ability, qualifications and authorisations, to perform the work. At first instance this information must be supplied verbally to the host and then confirmed in writing within two days of receipt (Reg.19).

can ensure that both the host and worker are aware of any legal obligations they may need to satisfy to enable the worker to undertake the work (Reg.20).

has undertaken all investigations which are reasonably practicable to determine that it would not be to either the worker or host’s detriment for the worker to perform the task (Reg.20).102

The United States have adopted a Multi-Employer Model in which both the host and the labour hire company are regarded as the worker’s employer with responsibility for occupational health and safety shared between the two, with the host generally having primary responsibility. Under this Model the labour hire company is regarded as the ‘general employer’ and the host as the ‘special employer’. Responsibility for workplace health and safety issues is thereafter assigned by ascertaining which entity is the responsible party.103

According to this Model:

the ‘Creating Employer’ causes the dangerous situation and as such is responsible for the hazard;

the ‘Exposing Employer’ is responsible where their employees are subjected to danger in circumstances in which the employer knew or ought reasonably have known of the risk

contribution they could provide.110

Suggestions for ReformModernising the Key Employment DefinitionsThe nature of the triangular labour hire relationship, in which the participants have varying degrees of control over the workplace environment, presents a comparatively unique environment for the regulation of occupational health and safety.111 As these alternate arrangements for the deployment of labour evolve outside the traditional structure, the law must likewise develop new and progressive techniques to enable it to ‘continually evaluate its approach to the characterisation of relationships and rights and obligations which may flow from them’.112 The challenge for the legislature is to simultaneously preserve the flexible opportunities these atypical employment relationships provide whilst at the same time ensure the occupational health and safety of workers.113

The current definitions upon which the occupational health and safety (and other employment related) legislation are predicated, rely on outdated notions of ‘employment’, ‘employer’114 and ‘employee’115 which have ‘failed to keep pace with contemporary industrial and employment practice’116 with the development of working relationships now outside the traditional norms.117

One option is to modernise these key definitions to encompass, amongst others, the labour hire arrangement. Greg Stevens, the former Deputy President of the Industrial Relations Commission of South Australia, in his review of the South Australian Industrial Relations System (‘the Stevens’ Review’), supports Andrew Stewart’s redefinition which suggests the following as essential elements of employment:

(1) A person (the worker) who contracts to supply their labour to

and failed to take action to protect its workers;

the ‘Correcting Employer’ is also an exposing employer who must rectify the risk; and

the ‘Controlling Employer’ supervises the workplace and has authority to remedy health and safety breaches.104

Whilst the Multi-Employer Model appears attractive it still attracts considerable litigation with the host organisation failing to include labour hire workers in workplace health and safety matters.105

The International Labour Office Convention on Occupational Health and Safety (No.155) 1981 (‘ILO C155’) outlines general standards for workplace health and safety, whilst its Convention on Private Employment Agencies (No.181) 1997 (‘ILO C181’), despite not making any specific reference to work safety issues, outlines general standards for the protection of agency workers. ILO C181 advocates the adoption of an approach which ‘balance[s] the interests of workers’ equity and the employers’ need for flexibility in hiring’.106

This is an attractive methodology for utilisation in a work safety context, requiring the evaluation and distribution of risk on the basis of fairness and equitable principles. It also reflects the concurrent objectives being, an appreciation of the efficient and flexible opportunities provided by the labour hire industry, whilst at the same time implementing successful strategies to ensure the health and safety of their workers.107

Whilst it is clear that ILO C155 was at least in part influential in the development of the Occupational Health and Safety Act 2000 (NSW) and associated Regulations108, unfortunately, Australia has not sought to ratify either ILO C155109 or ILO C181 despite the significant


another is to be presumed to do so as an employee, unless it can be shown that the other party is a client or customer of a business genuinely carried on by the worker.

(2) A contract is not to be regarded as one other than for the supply of labour merely because:

(a) the contract permits the work in question to be delegated or sub-contracted to others; or

(b) the contract is also for the supply of the use of an asset or for the production of goods for sale.

(3) In determining whether a worker is genuinely carrying on a business, regard should be had to the following factors:

(a) the extent of the control exercised over the worker by the other party;

(b) the extent to which the worker is integrated into, or represented to the public as part of, the other party’s business or organisation;

(c) the degree to which the worker is or is not economically dependent on the other party;

(d) whether the worker actually engages others to assist in providing the relevant labour;

(e) whether the worker has business premises (in the sense used in the personal services legislation); and

(f ) whether the worker has performed work for two or more unrelated clients in the past year, as a result of the worker advertising their services to the public.

(4) Courts are to have regard for this purpose to:

(a) the practical reality of each relationship, and not merely the formally agreed terms; and

(b) the objects of the statutory provisions in respect to which it is necessary to determine

the issue of employment status.

(5) An employment agency [that is, an entity whose business involves or includes the supply of workers to other unrelated businesses or organisations, whether through a contract or chain of contracts] which contracts to supply the labour of a person (the worker) to another party (the client) is to be deemed to be that person’s employer, except where this results in a direct contract between the worker and the client.

(6) Where:

(a) an arrangement is made to supply the labour of a person (the worker) to another party (the ultimate employer) through a contract or a chain of contracts involving another entity (the intermediary), and

(b) it cannot be shown that the intermediary is genuinely carrying on a business in relation to that labour that is independent of the ultimate employer, on the basis of factors similar to those set out in (3) above, the worker is to be deemed to be the employee of the ultimate employer.118

The adoption of a deeming approach whilst commendable for its ability to clarify the participant’s respective responsibilities, suffers from inflexibility and ensuing inability to ensure that responsibility for obligations, such as occupational health and safety are undertaken by the party who is best equipped to address and manage the particular risk in the circumstances.119

A further recommendation, suggested by the NSW Labour Hire Task Force is to update the definition of ‘employer’ to include:

[A] labour hire agency that arranges for an employee (who is a party to a contract of service with the … agency) to do work for someone else, even though the employee is working for the other person under an arrangement

between the … agency and the other person;

[Where the] ‘labour hire agency’ means an entity that conducts a business that includes the supply of services of employees to others…120

The recommendations proposed by both the Stevens’ Review and the Labour Hire Task Force do not attempt to impose any definitive or exhaustive statement on the composition of employment (nor the associated concepts of employer and employee) they merely attempt to preserve opportunities for business to organise their labour, whilst at the same time reduce uncertainty and the opportunities for the evasion of obligations.121

Whilst both recommendations for reform are based on amendments to associated state employment legislation (that is, the Industrial Relations Act 1996 (NSW) and the Industrial and Employee Relations Act 1994 (SA)) it is arguable that they are also capable of application to the respective State’s occupational health and safety legislation and hence the Occupational Health and Safety Act 2000 (NSW) and Occupational Health and Safety Regulation 2001 (NSW). While such redefinitions may not be capable of universal application, the adoption of such consistent key definitions encompassing all employment related legislation is to be encouraged. Such an approach would assist in ensuring consistency in the treatment and classification of workers and reduce the present uncertainty created by these new and developing working relationships.122

Joint EmploymentDeveloped in the United States, essentially as a reaction to the utilisation of labour hire in an attempt to avoid employee obligations, the doctrine of


‘joint employment’ arises in circumstances in which multiple employers exercise considerable control over identical employees and share or mutually determine matters affecting the fundamental terms and conditions of their employment.123 Whilst there are few Australian authorities or dicta on this issue there is burgeoning support for acceptance of the concept, if not with respect to employment obligations generally, at least in the context of occupational health and safety and the rehabilitation of injured workers.124

In Misheva v Spicers Paper Ltd 125 the Industrial Relations Court of Australia found in unfair dismissal proceedings, that both the labour hire company (Adia Centacom) and the host organisation (Spicers Paper) were the worker’s employers. In considering both the terms of the contract between Adia Centacom and Spicers Paper for the supply of labour and the relationship between Spicer Paper and the worker, the Court held that Spicer Paper was an employer. Curiously, Adia Centacom during the proceedings conceded it was an employer yet continued to contest the action on a number of grounds (that Spicers Paper had failed to give the worker adequate notice; that the worker was only employed for a specific task; and frustration of the contract) all of which failed. Consequently the Court found that the worker had an employment relationship with both parties, yet only ordered Adia Centacom to pay compensation given that Adia Centacom bore responsibility for notice under the contract for labour supply.

In Morgan v Kittochside Nominees Pty Ltd 126 the Australian Industrial Relations Commission (‘the AIRC’) indicated that whilst it was not necessary for them to consider the matter, that if the right factual circumstances arose they ‘would incline to the view that no

substantial barrier should exist to accepting that a joint employment relationship might be found and given effect for certain purposes under the Act’.127

In Oanh Nguyen and A-N-T Contract Packers Pty Ltd Trading as A-N-T Personnel and Thiess Services Pty trading as Thiess Services,128 Commissioner McKenna held in an application for unfair dismissal, that the host (Thiess) which had a contract with a labour hire company (A-N-T Personnel) for the supply of labour was the employer and hence liable to pay compensation. Commissioner McKenna whilst not convinced that there was sufficient authority for the joint employment doctrine indicated that if there were, that such a conclusion could be reached on the facts of this case. The Commissioner also indicated that if she were wrong in finding against Thiess then A-N-T Personnel would be liable. It is however necessary to appreciate that the circumstances of this case were not typical of the normal labour hire arrangement, in that Thiess had initially selected and engaged the worker, only later transferring her to A-N-T Personnel, with whom it then contracted for the supply of her labour.129

Proportional ResponsibilityThe law’s predilection with traditional forms of labour arrangement have caused unenviable and complex problems for the labour hire industry. In circumstances where the labour hire company is the worker’s employer it is required to satisfy the duties of the traditional employer as outlined in the Act, Regulations and case law despite the atypical nature of the employment relationship. Given the nature of the industry, the labour hire company may experience, amongst other things, difficulty in complying with the comprehensive range of consultative duties and obligations

The law gives little concession to the fact that the labour hire company generally has minimal specific knowledge of the site, little practical control over the workplace or the directions or instructions given to its workers and is limited in its capacity to influence the host. ... However, given the practical realities, this heavy reliance on the occupational health and safety obligations of the labour hire company is not only unfair but is also dangerous.


contained in the legislation and for which there are hefty financial penalties for non-compliance.130

The law gives little concession to the fact that the labour hire company generally has minimal specific knowledge of the site, little practical control over the workplace or the directions or instructions given to its workers and is limited in its capacity to influence the host. Instead the law indicates that it has a ‘special responsibility’ and must take a ‘positive and proactive approach’ in discharging its occupational health and safety responsibilities.131 However, given the practical realities, this heavy reliance on the occupational health and safety obligations of the labour hire company is not only unfair but is also dangerous.132

As the labour hire industry operates in every area of business it is required to identify more potential occupational health and safety risks than any other organisation. The nature of the industry is such that a single labour hire company can employ hundreds of persons in hundreds of industries at the same time. These industries can be extremely diverse ranging from traditional blue collar areas (such as manufacturing and production) to white collar professions (such as information technology, finance and the law). Given the fact that these employees can be engaged in a vast array of workplaces within these industries, aside from the obvious cost implications, one rapidly realises the arduous task required to be undertaken by labour hire companies in managing occupational health and safety.133

The current legislative structure supports a process of duplication, which requires that both the host and labour hire company undertake essentially the same tasks to achieve workplace safety.

Whilst this duality of obligation is virtuous, noble and defensible in theory, in reality it results in an inefficient utilisation of valuable resources, causes confusion, each party believing the other party will discharge the responsibility and places onerous obligations on the labour hire company to undertake an enormously difficult task.134

Unquestionably the labour hire company should as an employer (albeit not in the traditionally accepted sense of the word) maintain some responsibility for the health and safety of its workforce. However given the structure of the employment relationship consideration must be given as to how this duty is discharged. For this reason the doctrine of joint employment has considerable merit in any consideration of these issues where there is substantial logic in apportioning the responsibility for workplace safety amongst the respective parties, thereby achieving an effective utilisation of precious resources.135

In the traditional employment relationship there are only two parties, employer and employee. Historically it has been the employer who has primary responsibility for occupational health and safety, which is now undertaken in consultation with employees. When a host employer engages further workers through the on-hired employment arrangement they introduce a third party into the otherwise bipartisan arrangement. The concept of proportional responsibility facilitates the effective utilisation of these extra resources to afford an additional level of safety rather than further level of complexity. Provided the obligations of each party are clearly and unambiguously established both can work in unison to establish a safe working environment. The special knowledge of all participants should be identified

and effectively utilised to avoid duplication in a co-ordinated work safety effort.136

The theory of proportional responsibility is founded on the belief that legal responsibility for occupational health and safety should be placed upon the party who is best positioned to deal with it. Therefore, not only are the factors of control, knowledge, exposure and risk taken into consideration in allocating responsibility, but the nature and extent of the respective obligations are adjusted in accordance with the following determinates. These are:

1. the direct management and immediate supervision of the on-hired employee;

2. a comparison of the number of on-hired and direct employees undertaking the same range of work in the host’s workplace;

3. the duration of the assignment;

4. the type of work being undertaken; and

5. the associated assessment of risk.137

According to this analysis, where a single on-hired employee undertakes a low risk task for one day under the immediate supervision of the host, in circumstances where the host’s direct employees are performing similar work, this will result in greater responsibility being apportioned to the host than the labour hire company. In contrast, in circumstances where thirty technicians are on-hired to undertake continuing maintenance work at a manufacturing plant, where all supervisors are provided by the labour hire company, there will be greater responsibility assigned to the labour hire company than under the former arrangement.138

Proportional responsibility is not about avoiding obligations,


rather it is concerned with the appropriate allocation of responsibility to the respective parties built upon pragmatic considerations. It is also concerned with clarifying occupational health and safety obligations and eliminating the present ambiguity and uncertainty in applying these responsibilities to the labour hire industry.139 It is imperative that any legislative reforms which are undertaken clearly and unambiguously express the respective occupational health and safety obligations of the labour hire industry participants, thereby assisting the parties to manage risks and hazards in their working environment.140

Delineating the Duties of Labour Hire ParticipantsThe current legislative structure is based on only two categories of workers—employees and non-employees. However, this structure, as well as the old definitions are no longer appropriate for many of the modern working relationships.141 Further reforms are required to clearly reflect the diverse array of organisational structures and modern forms of atypical working relationships, such as those which exist in the labour hire industry.142 The use of artificial labels by the participants to describe their relations, whilst certainly adding to the confusion, will not as many believe, absolve them of their occupational health and safety obligations. Whilst the parties can outsource their labour requirements they cannot contract out of their occupational health and safety responsibilities.143

Rather than simply redefine the traditional concepts of ‘employer’ and ‘employee’ to encompass the labour hire arrangement a clearer and more effective solution would be to draft an entirely new section (accompanied by appropriate amendments to the regulations) delineating the responsibilities of

the respective participants and providing a means by which they might discharge their obligations in an effective and co-ordinated manner.144 Whilst the current Regulations envisage the adoption of a co-ordinated approach they provide no guidance as to how these responsibilities should be shared. Since each party retains their individual responsibilities for workplace safety and the case law clearly shows that reliance on another who fails to fulfill their obligations will not discharge the duty holder, the current utility of clauses such as clause 8, is questionable.145

The adoption of appropriate industry definitions and terminology, coupled with unambiguous drafting which clearly reflects the objectives of the Act and clearly outlines the parties’ respective duties would be a much welcomed reform. The current duties, scattered throughout the legislation and often duplicitous, using terminology which is not overtly applicable to the labour hire industry, results in confusion and non-compliance.

Legislative reform which clearly reflects the current guidelines and precedents established by the cases would assist in the clarification of the parties’ respective obligations.146 However, the consideration of a proportional responsibility approach based on the determinants discussed above would also be worthwhile. Such reforms would make an invaluable contribution in achieving the principal objective of the Act, that being to ‘secure the health, safety and welfare of persons at work’.147 Where the relationship is a tripartite one it is only natural that legislation intended to regulate bipartite arrangements must be reformed.148 Our laws must continue to adapt to reflect ongoing political, economic and social change.149

The use of artificial labels by the participants to describe their relations, whilst certainly adding to the confusion, will not as many believe, absolve them of their occupational health and safety obligations. Whilst the parties can outsource their labour requirements they cannot contract out of their occupational health and safety responsibilities.


its (sic) the responsibility of the client to provide safe equipment in a safe working environment and … [the worker] … should have an awareness of the responsibilities of a fettler.153

Such comments are insightful as to the nature and extent of the transference undertaken by parties’ with respect to their occupational health and safety obligations. It is also indicative of the parties’ inability to derive and fully comprehend for themselves, with any ease, the pertinent principles and guidelines conferred by the cases and outlined in the legislation with respect to such issues. The exercise is further complicated by the use of outmoded notions of ‘employer’ and ‘employee’ in conveying such duties.

The inherent importance of workplace health and safety as an issue for our society necessitates a proactive approach. A diffident attitude to such matters in which a party only acquires a full appreciation of their obligations as a consequence of breach, whilst certainly instructive, has the potential for disaster and may come at a heavy price, thereby necessitating that further practical guidance be provided by ‘gentle prescription’.154 The publication and promotion of the principles and guidelines155 which have been derived from the cases, by either legislative reform, the development of an Industry Code or a combination of both would be a welcome advance. A Code of Practice accompanied by effective education, training and publicity strategies could constitute part of a welcomed multi-faceted reform agenda.156

THE FUTURE OUTLOOKThe proliferation of the utlilisation of atypical employment relationships (such as labour hire arrangements) is unlikely to contract as businesses reorganise

Code of Practice, Publicity, Education and Guidance MaterialThe development of an appropriate Labour Hire Industry Code of Practice, which provides guidance to the parties with respect to their respective occupational health and safety responsibilities, would be a further positive step towards reform. Whilst neither a breach of nor compliance with such a Code presently constitutes either respectively, an offence or defence,150 with the prosecution able to introduce the Code into evidence in support of any proceedings for breach,151 the introduction of an appropriate Industry Code should assist with compliance thereby reducing the incidence and severity of workplace injuries.

Opponents claim that as the Act, Regulations and numerous court decisions already provide guidance as to the occupational health and safety obligations of the respective labour hire industry participants and penalties which befall those who breach such requirements, that the advancement of such Code is unnecessary and redundant.152 However, the evidence clearly indicates the lack of appreciation which currently exists in the labour hire industry as to the nature and extent of the respective parties’ occupational health and safety responsibilities. Indicative of this present confusion are the comments made by Mr West, Managing Director of Swift Placements when interviewed by the prosecutor as to the steps the labour hire company had taken to assess the host organisation’s workplace for the purposes of ensuring the safety of its workers.

We provide them with the staff according to what they want, its (sic) up to them to provide suitable and safe equipment as we cannot impinge on there (sic) territory. We provide the person they provide the equipment that is safe to use,

their labour to meet the demands of globalisation. At the same time concerns over occupational health and safety issues are increasing as society demands better protection. Not only must the law evolve to meet the challenges of these new working arrangements, at the same time businesses (such as the labour hire industry) must also adapt to accord priority to occupational health and safety


REFERENCES1. Collins H, ‘Independent Contractors and the Challenge of Vertical Disintegration to Employment Protection Laws’ (1990) 10 Oxford Journal of Legal Studies 353, 354, 376–380; Professor R McCallum’s evidence to the Standing Committee On Law and Justice on 26/8/98. See Standing Committee on Law and Justice, Parliament of New South Wales, Legislative Council, Final Report of the Inquiry into Workplace Safety, Report No.10, 1998, [5.3.6]; Stewart A, ‘Redefining Employment? Meeting the Challenge of Contract and Agency Labour’ (2002) 15(3) Australian Journal of Labour Law 235, 251; Johnstone R, ‘Paradigm Crossed? The Statutory Occupational Health and Safety Obligations of the Business Undertaking’ (1999) 12(2) Australian Journal of Labour Law 73, 74–75.

2. Johnstone, Note 1 at 77; Hall R, Labour Hire in Australia: Motivation, Dynamics and Prospects (Working Paper No.76, ACIRRT, University of Sydney, 2002) 4–5, 10.

3. CCH, Australian Employment Law Guide, (at 172-2-02) ¶9-200.

4. Cameron C, ‘Proportional Responsibility—Efficient Health and Safety Management Solutions for the On-Hired Employee Services Industry’ (Cameron’s speech was delivered by Matthew Macarthurs at the Industrial Relations Society of Australia’s National Convention, Adelaide, 31 March 2003); Hall, Note 2 at 4, 7.

5. The European Agency for Safety and Health at Work refers to this arrangement as the ‘flexible firm’. See Gibson A and Fraser D, Business Law (Sydney: Pearson Education Australia Pty Ltd, 2003) 747; Creighton B and Stewart A, Labour Law an Introduction (Sydney: The Federation Press, 3rd ed, 2000) [1.31]; European Agency for Safety and Health at

Work’s Topic Centre on Research—Work and Health, New forms of contractual relationships and the implications for occupational health and safety (Luxembourg: European Agency for Safety and Health at Work, 2002) 6.

6. European Agency for Safety and Health at Work’s Topic Centre on Research—Work and Health, Note 5 at 20.

7. European Agency for Safety and Health at Work, ‘The Changing World of Work: Trends and implications for occupational safety and health in the European Union’ (2002) 5 Forum 1.

8. For example, in the area of occupational health and safety, outplacement etc. See NSW Department of Industrial Relations, Labour Hire Task Force Final Report, Sydney, 2001, 19 (Note that the NSW Department of Industrial Relations is now known as the NSW Department of Commerce); Recruitment & Consulting Services Association, ‘RCSA Defines the Industry’ (Media Release, 26 August 2002). Cf. Hall whose definition is restricted to that of supplementary labour. See Hall, Note 2 at 4.

9. NSW Department of Industrial Relations, Note 8 at 18–19. Stewart, Note 1 at 251–252; Hall, Note 2 at 4.

10. Stewart, Note 1 at 238; NSW Department of Industrial Relations, Note 8 at 27.

11. NSW Department of Industrial Relations, Note 8 at 27.

12. Underhill E, Extending Knowledge on Occupational Health & Safety and Labour Hire Employment: A Literature Review and Analysis of Victorian Worker’s Compensation Claims (A Report prepared for WorkSafe Victoria, Victoria University, Melbourne, October 2002) 101.

13. WorkCover Authority of Victoria, Labour hire and on-hired

workers (2003) <http://www.workcover.vic.gov.au/Vwa/home.nsf/pages/so_labour_hire> at 9 April 2003.

14. The new notification and publication sanctions contained in s.115 of the Act seek to utilise adverse publicity as an effective deterrent and enforcement mechanism. See also s.12 of the Act which outlines the current maximum penalties for breach of ss.8–11, which for a corporation, being a previous offender is $825,000 and for an individual, being a previous offender is $82,500 and/or 2 years imprisonment). Gibson et al., Note 5 at 771.

15. The study compared the workplace claim histories for on-hired employees with that of non-labour hire employees from 1 July 1994 to 30 June 2001. Whilst the study also found overall fewer claims for on-hired female employees this was rationalised on the basis that for the period of the examination the high risk female dominated occupations (e.g. teaching, welfare etc.) were not generally the subject of on-hired arrangements. Interestingly during 2000–2001, the claims of on-hired nurses surpassed those of their non-labour hire colleagues. This may suggest an increase in on-hired arrangements or that previously this group has described themselves in other ways. Underhill, Note 12 at 44–55, 87–90, 98–99, 101, 103–105. There are also indications that on-hired female employees are less likely to complain about workplace health and safety issues or submit workers compensation claims than their non-labour hire counterparts, due to fears that they will not receive further work from the labour hire company. See Ms A Gardiner’s evidence to the Standing Committee on Law and Justice on 17/8/98. Standing Committee on Law and Justice, Note 1 at [5.4.7].


16. Underhill, Note 12 at 6, 101–105; NSW Department of Industrial Relations, Note 8 at 59, 60; Johnstone, Note 1 at 77; European Agency for Safety and Health at Work’s Topic Centre on Research —Work and Health, Note 5 at 13.

17. This is because the definitions of ‘employer’ and ‘employee’ in s.4 of the Act rely upon the common law concept of employment. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (‘Stevens’) per Mason J at 29; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (‘Hollis’) at [24], [44]. See also Re Porter (1989) 34 IR 179 per Gray J at 184.

18. Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 per Doyle CJ at 443. See also Stevens, Note 17 per Mason J at 24; Hollis, Note 17 at [42], [44]–[45]. For a further discussion on this issue see Crawley M, ‘Labour Hire and the Employment Relationship’ (2000) 13(3) AJLL 291.

19. Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Inspector May) [2000] 96 IR 69 (‘Swift ’) per Wright J (P), Walton J (VP) and Hungerford J at 89–90 quoting Marks J. In recognition of the fact that some independent contractors who function as self-employed entities may not have any real control over either the work they are contracted to perform nor the health and safety aspects of that work, some European Union countries, for the purposes of workplace health and safety, treat them as employees of the entity which has engaged them to perform the work. See European Agency for Safety and Health at Work, Note 7 at 4.

20. Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 per Kirby P at 375.

21. Building Workers Industrial Union & Ors v Odco Pty Ltd (1991) 29 FCR 104 (‘Odco’) per Woodward J at 384.

22. Stevens, Note 17 per Wilson and Dawson JJ at 37. For a more detailed discussion on identifying a contract of employment see Creighton B and Stewart A, Labour Law An Introduction (Sydney: The Federation Press, 3rd ed, 2000) [7.16]–[7.25] and Macken J, O’Grady P, Sappideen C and Warburton G, The Law of Employment (Sydney: Lawbook Co., 5th ed, 2002), Chapter 1. For an international perspective see International Labour Office, Report V: The scope of the employment relationship (Geneva: ILO, 2003).

23. See e.g. Oanh Nguyen and A-N-T Contract Packers Pty Ltd Trading as A-N-T Personnel and Thiess Services Pty trading as Thiess Services NSWIRC (Commissioner McKenna, 3 March 2003) (‘Nguyen’). See also obiter comments made by Hampton DP in Melbourne v JC Techforce Pty Ltd [1998] SAIRComm 62 (unreported, 23 July 1998).

24. An independent contracting arrangement which was approved by the Full Federal Court in Building Workers Industrial Union & Ors v Odco Pty Ltd (1991) 29 FCR 104 (‘Odco’). The Court held neither the agency nor the client were the workers’ employer. Stewart describes the Odco arrangement as a triangular relationship, where on one side there is the labour hire company and worker with a contract but no control; on the second side, there is the client and worker, with no contract but control; and on the third side there is the labour hire company and client engaged in an entirely commercial arrangement. For a further discussion of the Odco contracting arrangement see Stewart, Note 1 at 254; Creighton et al., Note 22 at [7.22]; Macken et al., Note 22 at 53–56; Harley G, ‘Rise of contracting and labour hire’ (2000) 6(2) Employment Law Bulletin 13.

25. Drake Personnel Ltd v

Commissioner of State Revenue (2000) 2 VR 635 (‘Drake’). See also the recent decision of Country Metropolitan Agency Contracting Services Pty Ltd v Slater and WorkCover/CGU Workers Compensation Insurance (SA) Pty Ltd [2003] SAWCT 57 (30 May 2003) in which the Full Bench of the Workers Compensation Tribunal in South Australia upheld Deputy President Gilchrists’s decision, that a person working under an Odco type arrangement was an employee of the labour hire company and not an independent contractor. McCusker DPJ at [60] indicated that the particular idiosyncrasies of the construction industry upon which the initial Odco arrangement had been found were important considerations in reaching this decision.

26. Section 6 of the Act indicates that an employee is at work when they are at their place of work.

27. Section 8(1)(a)–(e) of the Act.

28. Inspector Richard Charles Clark v WL Meinhardt & Partners Pty Ltd (unreported, NSWIRC, Fisher CJ, Case Nos 1212–3/90, 30 June 1992) (‘Meinhardt ’); Inspector Page v Woolworths Ltd [1994] NSWIRC 95 (‘Woolworths’) per Peterson J at p7.

29. TST Pty Ltd v Griffiths (1991) 105 FLR 255 per Asche J at 272. For a detailed discussion on defining the workplace see Kelly D, Defining the ‘Workplace’ in Workplace Industrial Relations (Working Paper No. 4, ACIRRT, University of Sydney, 1990).

30. Carrington Shipways Pty Ltd v Inspector RJ Callaghan (1985) 11 IR 467 per Watson J at 470. Cf. ABB Power Transmission Pty Ltd v WorkCover Authority (Inspector Wilson) (unreported; Fisher P and Bauer and Hungerford JJ; 2 May 1997) who indicated s.8’s predecessor was a strict liability offence. See also Drake Personnel Ltd t/as Drake Industrial


v WorkCover Authority of NSW(Inspector James Swee Ch’ng) (1999) 99 IR 432 (‘Drake Personnel ’) per Wright P and Walton J at 452 who were undecided, indicating that it was either. For a discussion of these approaches see Schmidt M, ‘Recent Developments in Occupational Health & Safety’ (Paper presented at the NSW Young Lawyers Annual One Day Industrial Law Seminar, Sydney, 23 February 2002) 6–7, as well as the High Court’s decision of He Kaw Teh v The Queen [1985] 157 CLR 523.

31. Haynes v C I &D Manufacturing Pty Ltd (1965) 60 IR 149 (‘Haynes’) at 156–157.

32. McMartin v Broken Hill Pty Ltd (unreported, SC (NSW), Grove J, 5 February 1988) (‘McMartin’); State Railway Authority v Dawson (1990) 37 IR 110 (‘Dawson’) at 120–121; WorkCover Authority of NSW (Inspector Akucic) v McDonald’s Australia Ltd (1999) 95 IR 383 (‘McDonald’s’) per Walton J at 439–440; Haynes, Note 31 at 157, 159; CSR Ltd t/as CSR Wood Panels v WorkCover Authority of NSW (unreported, NSWIRC, Bauer J, Matter No CT1176 of 1994, 10 August 1995).

33. See ss.29(1) and (2) of the Act.

34. Drake Personnel, Note 30 per Wright P and Walton J with whom Peterson J agreed at 456. See also Labour Co-operative Limited v WorkCover Authority of NSW (Inspector Robins) [2003] NSWIRComm 51 (‘Labour Co-operative’) per Wright, Walton and Boland JJ at [40]; Inspector Blume v TMP Worldwide eResourcing [2003] NSWIRComm 37 (19 February 2003) (‘TMP Worldwide’) per Boland J at [16], [17], [20].

35. Drake Personnel, Note 30 at 456; Labour Co-operative, Note 34 at [40].

36. Drake Personnel, Note 30 at 456.

37. See clauses 14(2) and (3) of the

Regulations and Inspector Davies v Prospect Electricity (unreported, Industrial Court (NSW), Fisher CJ, CT747/1991, 9 November 1992) at p9.

38. See clause 14(1) of the Regulations. But see clauses 243 and 244 of the Regulations which require specific supervisory measures be implemented with respect to excavation work.

39. See generally: Ferraloro v Preston Timber Ltd (1982) 42 ALR 627 at 629; WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248, per Bauer J at 257; Riley v Australian Grader Hire Pty Ltd [2001] NSWIRC 31 at [15]; WorkCover v TRW [2001] NSWIRC 52 per Boland J at [13]; Bartos v CSR Ltd (1990) Australian Industrial Safety, Health and Welfare Case Digests ¶52-761.

40. WorkCover v Kevin R Sheather Services Pty Ltd [2001] NSWIRC 74 (‘Sheather Services’) per Peterson J at [32].

41. WorkCover Authority of NSW (Inspector Eagon) v Atco Controls Pty Ltd (1998) 82 IR 80 (‘Atco’) per Hill J at 85; Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRC 240 (‘Kennedy-Taylor’) at [62]–[63]. See also the risk management objective contained in s.3(e) of the Act.

42. Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) [2000] 102 IR 84 (‘Mainbrace’) per Wright J (P), Hungerford and Boland JJ at 1000; WorkCover Authority of NSW (Inspector Robinson) v Milltech Pty Ltd [2001] NSWIRC 51 (‘Milltech’) per Mark J at [18]–[21]; TMP Worldwide, Note 34 per Boland J at [20].

43. See clauses 5, 9–11 of the Regulations and WorkCover NSW’s Health and Safety Code of Practice on OHS Risk Assessment which provides practical guidance on

satisfying this obligation. Connolly L, ‘Developments In Occupational Health & Safety Law OH&S’ (Paper presented at the UNSW Continuing Legal Education Employment Law Seminar, Sydney, 24 September 2002) [5.2]. See Inspector Guillarte v Integrated Group Ltd [2003] NSWIRComm 98 (15 April 2003) per Marks J at [11]–[13] where a well developed occupational health and safety policy and commitment to work safety obligations assisted in lowering the labour hire company’s fine to $40,000. In contrast the host, Industrial Galvanizers Corporation was fined $550,000 over the same incident. See Guillarte v Industrial Galvanizers Corporation [2002] NSWIRComm 192 (9 August 2002) per Boland J.

44. See clause 13(2) of the Regulations.

45. See clause 16 of the Regulations.

46. See clause 12 of the Regulations.

47. See Milltech, Note 42 per Marks J at [17]. See also clause 13(1)–(2) of the Regulations. Note that Chapter 8, Part 8.2 of the Regulations sets out specific requirements for occupational health and safety induction training for construction work and Chapters 5 and 6 detail requirements as to the provision of information regarding plant and hazardous substances.

48. See Part 2, Division 2 of the Act. See also Chapter 3 of the Regulations as well as WorkCover NSW’s Health and Safety Code of Practice on OHS Consultation which provides practical guidance on satisfying the duty. Connolly, Note 43 at [2.7].

49. See ss.13–14 of the Act.

50. TVW Enterprises v Duffy (1985) 62 ALR 63 per Sheppard J at 70.

51. See clauses 21 and 23 of the Regulations.


52. This argument would not be possible in other jurisdictions such as the ACT where the meaning of a self-employed person is confined to a natural person. See e.g. s.5 of the Occupational Health and Safety Act 1989 (ACT). Tooma M, Tooma’s Annotated Occupational Health and Safety Act 2000 NSW (Sydney: Lawbook Co., 2001) [1.9.15], [4.16.15].

53. Cf. Section 22 of the Occupational Health and Safety Act 1985 (Vic) and ss.28(3), 29(3) and 29A of the recently amended Workplace Health and Safety Act 1995 (Qld) which do not confine protection to the workplace. Rather the protection is tied to the conduct of the employer’s, self-employed person’s or other person’s business or undertaking. Jamieson S and Westcott M, ‘Occupational Health and Safety Act 2000: A Story of Reform in New South Wales’ (2001) 14 Australian Journal of Labour Law 177, 182.

54. See e.g. WorkCover Authority of NSW (Inspector Mauger) v SWR Constructors Pty Ltd [2000] NSWIRC 115 (‘SWR Constructors’) where a prosecution initiated under the predecessor to s.8(2) failed because the defendant used a service entity to engage its entire workforce as contractors. Had the proceedings been initiated under the predecessor to s.9 it may have been successful. See also Rech v FM Hire Pty Ltd (1998) 83 IR 293 and Inspector Taylor v Fletcher International Exports Pty Ltd [2001] NSWIRC 155. Tooma, Note 52 at [1.9.15].

55. Whitaker v Delmina Pty Ltd (1998) 87 IR 268 per Hansen J at 280–281.

56. WorkCover Authority of NSW v Techniskil-Namutoni Pty Ltd [1995] NSWIRC 127 per Cahill ACJ at [8]. In the two related cases of WorkCover Authority of NSW (Inspector Farrell) v Schrader [2002] NSWIRComm 25 (Walton J (VP), 22 March 2002) and WorkCover Authority of NSW

(Inspector Farrell) v Morrison [2002] NSWIRComm 325 (Walton J (VP), 19 December 2001) both the self-employed building and construction manager (Schrader) and the self-employed pool builder (Morrison) were convicted under the predecessor to s.9 in relation to the death of a child who had drowned in the partially constructed swimming pool on a domestic construction site in which both Schrader and Morrison were undertaking work.

57. McMartin, Note 32; Dawson, Note 32 at 120–121; McDonald’s, Note 32 per Walton J at 439–440.

58. For example, the employer’s obligation to assess risks pursuant to clause 10(1) of the Regulations extends to ‘any other person legally at the employer’s place of work.’

59. Atco, Note 41 per Hill J at 85; Kennedy-Taylor, Note 41 at [62]–[63]; Mainbrace, Note 42 per Wright J (P), Hungerford and Boland JJ at 1000; Milltech, Note 42 per Mark J at [18]–[21]; Inspector Blume v LG Electronics [2003] NSWIRComm 37 (19 February 2003) (‘LG Electronics’) per Boland J at [17].See also s.3(e) of the Act and clauses 5, 9–12 and 16 of the Regulations.

60. See clause 13(2) of the Regulations. Moore v Fielders Steel Roofing Pty Ltd [2003] SAIRC 32 (30 May 2003) per Industrial Magistrate Ardlie at [82].


62. See clause 22(2)(i) of the Regulations. For a further discussion on these issues see Punch G, ‘Casual landmine in occupational health and safety’ (2002) 5(8) Inhouse Counsel 93.

63. See ss.10(1), 10(2) of the Act.

64. See s.10(3)(b) of the Act.

65. See s.10(3)(d) of the Act.

66. See also s.4 of the Act. In Inspector Hart v P J Lee &

Associates Pty Ltd (unreported, Chief Industrial Magistrate’s Court, Miller CIM, No 92/809, 27 November 1992) Miller CIM, held that a construction site constituted a WorkCover Inspector’s place of work at the time he was undertaking an inspection of the site. See also Meinhardt, Note 28; Woolworths, Note 28.

67. McMillan Britton & Kell v WorkCover (1999) 89 IR 464 (‘McMillan’) per Wright J (P), Hungerford and Marks JJ) at 480–481.

68. See s.10(4)(a) of the Act. See also Inspector Page v Growth Equities Services Pty Ltd [1994] NSWIRC 95 (‘Inspector Page’).

69. WorkCover Authority of NSW (Inspector Callaghan) Rowson [1994] NSWIRC 76; McMillan, Note 67.

70. Inspector Page, Note 68.

71. McMartin, Note 32; Dawson, Note 32 at 120–121; McDonald’s, Note 32 per Walton J at 439–440.

72. See McMillan, Note 67. Connolly, Note 43 at [2.2].

73. See Chapter 4, Part 4.2 of the Regulations.

74. WorkCover Authority of NSW, Final Report of the Panel of Review of the Occupational Health and Safety Act 1983, 1997, [4.2.2], [4.2.3]; Thompson W, ‘Occupational Health & Safety Obligations to Sub-Contractors and Agency Workers’ in ACCIRT Working Paper 58, Labour law, organisational restructuring and atypical work—the emerging issues—Seventh Annual Labour Law Conference Proceedings (Sydney: ACCIRT, 11 June 1999) 50–51.

75. On this reasoning if the facts of SWR Constructors, Note 54 arose today it may be possible to utilise s.30 to successfully prosecute the defendant. The predecessor alternative verdicts provision contained in s.16(3) of the Occupational Health and


Safety Act 1983 (NSW) could not have been used for this purpose as it only permitted an alternative verdict under s.15 (the predecessor to s.8(1)), not s.16(2) (the predecessor to s.9) in circumstances where the defendant was prosecuted under s.16(1) (the predecessor to s.8(2)).

76. See Inspector Gordon v Wallis [1994] NSWIRC 163 per Cullen J referred to the predecessor of s.20(1) as the ‘personal liability element’ and s.20(2) as ‘the employee’s common duty with the employer to enable the objects of the Act to be achieved’. However, as the wording of s.20(2) is not restricted to employers the on-hired employee would also have a duty to cooperate with the host organisation.

77. Stevenson v Hoggard [1992] SAIRC 41 per Cunningham IM at 16.

78. Inspector Wolfe v Franklin (unreported, NSW Chief Industrial Magistrate’s Court, Miller CIM, No 89/927, 4 July 1990, unreported). Cf. Tooma who advocates a subjective-objective test. See Tooma, Note 52 at [1.20.15].


80. See s.28 of the Act.

81. Sydney County Council v Coulson (1987) IR 477 per Fisher P, Watson and Macken JJ at 480 (‘Coulson’).

82. Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 (‘Shannon’) at 364; Southam v Petersville Ltd (1988) 24 IR 186 (‘Southam’) at 193.

83. Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; Southam, Note 82 at 193.

84. Edwards v National Coal Board [1949] 1 All ER 743 per Lord Asquith at 747. See also WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (unreported, NSWIRComm No. 7048 of 1999, 21 November 2001).

85. See e.g. Shannon, Note 82 and Drake Personnel, Note 30.

86. Coulson, Note 81 at 480; WorkCover Authority of NSW (Inspector Brooks) v Standfast Tree Services Pty Ltd [2003] NSWIRComm 178 (6 June 2003) per Haylen J at [81], [85].

87. Clause 8, Chapter 1 of the Regulations.

88. Thompson, Note 74 at 44.

89. Johnstone, Note 1 at 102; WorkCover Authority of Victoria, Note 13; Nuzum P, ‘Labour Hire—Controlling the Risks’ (Paper presented at the Safety Institute of Australia Conference, Melbourne, May 2001); Catanzariti J, ‘Industrial Relations: Health and safety duties owed by labour hire agencies’ (1999) 37(8) LSJ 33, 34. See generally: Drake Personnel, Note 30 at 456; Newman v David Knox Holdings Pty Ltd [2002] 170 QGIG 189.

90. NSW, Parliamentary Debates, Legislative Council, 26 May 2000, 5936 (Hon Jeff Shaw, Attorney General and Minister for Industrial Relations); Jamieson et al., Note 53 at 188–189.

91. NSW, Parliamentary Debates, Note 90.

92. Standing Committee on Law and Justice, Note 1 at [5.6].

93. WorkCover NSW’s Submissions to the NSW Labour Hire Task Force. NSW Department of Industrial Relations, Note 8 at 27, 57.

94. Cameron, Note 4; European Agency for Safety and Health at Work, Note 7 at 2; European Agency for Safety and Health at Work’s Topic Centre on Research —Work and Health, Note 5 at 9.

95. See s 142 of the Act.

96. Cameron, Note 4.

97. Pointe-Claire (City) v Quebec (Labour Court) [1997] 1 S.C.R. 1015 (‘Pointe-Claire’) per Lamer CJ, La Forest, Gonthier and Cory JJ.

98. Underhill, Note 12 at 25–28, 34–35.

99. Underhill, Note 12 at 28–31.






105. Silverstein B and Foley M, ‘Protecting Contingent Workers from Work-related Injury’ (Paper presented at the Ergonomics Society of Australia Conference, Melbourne, 5–7 October 1998). Underhill, Note 12 at 34

106. Bruhnes 1997 cited in Underhill, Note 12 at 25.

107. NSW Department of Industrial Relations, Note 8 at 52; Cameron, Note 4.

108. Articles 16–18 of the ILO C155 are similar in scope to s.8 of the Act and Articles 19–20 are similar to the consultation provisions contained in Part 2, Division 2 of the Act and Chapter 3 of the Regulations.

109. Contrary to the then NSW Attorney General and Minister for Industrial Relations, the Hon Jeff Shaw’s statement in his Second Reading Speech on 26 May 2000. See NSW, Parliamentary Debates, Note 90. However, this may come to fruition should the Commonwealth Government decide to establish a national occupational health and safety system as a result of the Productivity Commission’s present inquiry into same.

110. See Creighton and Rozen’s discussion on the positive influence the adoption of such ILO Standards could provide for the development of workplace health and safety legislation in Australia, as well as the reasons for the current reticence toward ratification. Creighton B and Rozen P, Occupational Health and Safety in Victoria (Sydney: Federation


Press, 2nd ed, 1997) 18–24.

111. Underhill, Note 12 at 20; WorkCover’s Submissions to the Labour Hire Taskforce. NSW Department of Industrial Relations, Note 8 at 60–61.

112. Swift, Note 19 at 90.

113. Stevens G, Report of the Review of the South Australian Industrial Relations System, Adelaide, October 2002, 45–47, 52–53; NSW Department of Industrial Relations, Note 8 at 52.

114. Defined in s.4 of the Act to mean ‘a person who employs persons under contracts of employment or apprenticeship’.

115. Defined in s.4 of the Act to mean ‘an individual who works under a contract of employment or apprenticeship’.

116. Stevens, Note 113 at 46.

117. Stewart, Note 1 at 235–236, 239, 263; Stevens, Note 113 at 45–46; NSW Department of Industrial Relations, Note 8 at 38, 43; Cameron, Note 4.

118. Stevens, Note 113 at 45–46 adopting the definition proposed by Stewart. See Stewart, Note 1 at 270–271.

119. The deeming approach to reform was unanimously rejected by the NSW Labour Hire Task. NSW Department of Industrial Relations, Note 8 at 48; 61; Cameron, Note 4.

120. Based on s.6 of the Industrial Relations Act 1999 (Qld) and the then proposed s.7 of the Fair Employment Bill 2000 (Vic) which was defeated in the upper house. See NSW Department of Industrial Relations, Note 8 at 52–53. In Western Australia, the Labour Relations Reform Act 2002 (WA) has extended the definition of an employer to include labour hire companies.

121. Stewart, Note 1 at 269–270; NSW Department of Industrial Relations, Note 8 at 52. See further, International Labour Office,

Note 22.

122. Whilst it would be desirable to achieve this outcome at both a State and National level (for example with respect to superannuation and taxation legislation) it is recognised that there may be difficulties in achieving this goal in the short-term. However, consistency at the State level could arguably be an achievable and realistic goal for which to strive. The Productivity Commission is currently undertaking an inquiry into the possibility of establishing national workers compensation and occupational health and safety schemes. Stevens, Note 113 at 130–131; NSW Department of Industrial Relations, Note 8 at 48; Stewart, Note 1 at 270.

123. NLRB v Browning-Ferris Industries of Pennsylvania 691 F 2d 1117 (3rd Cir. 1982); see also, TIJ, Inc., 271 NLRB 798 (1984). Stevens, Note 113 at 61; Harley G, ‘Joint Employment’ (2003) 8(9) Employment Law Bulletin 84.

124. The NSW Labour Hire Task Force has recommended rendering into legislation the joint responsibility of labour hire companies and host organisations for the health and safety, as well as the rehabilitation and return to work, of labour hire workers. The Stevens’ Review also recommends that the concept of joint employment be incorporated into relevant parts of South Australia’s employment legislation, including the Occupational Health Safety and Welfare Act 1986 (SA). See generally, Stewart, Note 1 at 274–275; NSW Department of Industrial Relations, Note 8 at 65–67; Stevens, Note 113 at 60–62.

125. (1998) 44 AILR ¶3–904.

126. (2002) 117 IR 152 (‘Morgan’).

127. Morgan, Note 126 at 75.

128. Nguyen, Note 23.

129. Nguyen, Note 23 at 1, 20,

21–22. See Thompson v Brunel Energy Pty Ltd [2001] WAIRC 04102 (7 November 2001) (‘Thompson’); SDA v GlaxoSmithKlyne NSWIRC (11 June 2002) for further discussions on the doctrine of joint employment.

130. See s.13 of the Act. The maximum penalty for a corporation being a previous offender is currently $82,500 and for an individual being a previous offender, $41,250.

131. Ankucic v Drake Personnel t/as Drake Industrial (unreported, NSW IRC 96/6475, 6476, 6479, 25/11/97) per Hungerford J at 13–14; Labour Co-operative, Note 34 per Wright, Walton and Boland JJ at [40]; TMP Worldwide, Note 34 per Boland J at [16], [17], [20] rejected TMP’s (the labour hire company’s) submissions that because it was not in control of the unloading procedures nor in a position to supervise, that its level of culpability should be lower than LG Electronics Pty Ltd (the host organisation). Both companies were fined $152,750 as a result of the worker’s death. See also LG Electronics, Note 59.




135. Stewart, Note 1 at 275; Cameron, Note 4.





140. WorkCover Authority of NSW, Note 74 at [1.7].

141. European Agency for Safety and Health at Work’s Topic Centre on Research—Work and Health, Note 5 at 6, 44, 48.

142. Johnstone, Note 1 at 111.

143. Howard S, ‘Sub-Contracting and OH&S’ in Legalwise Seminars Pty Ltd (ed), Sub-Contractors and


the Law 2003 (Sydney: Legalwise Seminars Pty Ltd, 25 March 2003) 52, 61; Thompson, Note 74 at 43.

144. A similar recommendation was made by Laing in his Final Report on the Review of the Mines Safety and Inspection Act 1994 (WA). See Laing R, Final Report: Review of the Mines Safety and Inspection Act 1994 (WA) (Perth, 2003), 89.

145. See Chapter 1, Clause 8 of the Regulations. See also Johnstone, Note 1 at 111. Article 17 of the ILO C155 also envisages a collaborative effort where two or more undertakings are engaged at the one workplace. However, Article 10 indicates that guidance must be provided to assist compliance. Furthermore, Article 4 indicates that the complementary character of the respective parties’ occupational health and safety should be considered in formulating a national policy.

146. The NSW Labour Hire Taskforce recommends that the concept of joint responsibility of the host and labour hire company for occupational health and safety as expressed in Ankucic v Drake Personnel t/as Drake Industrial (unreported, NSW IRC 96/6475, 6476, 6479, Hungerford J, 25/11/97); WorkCover (Inspector James Swee Ch’ng) v Drake Personnel (NSW IRC No. 3064 of 1997, Peterson J, 12/08/99) be included in the Act to clarify the parties’ respective responsibilities. NSW Department of Industrial Relations, Note 8 at 65.

147. See long title of the Act. See also s.3 of the Act.

148. Pointe-Claire, Note 97.

149. McCallum R, ‘Legal Aspects of the Changing Social Contract at Work’ in Callus R and Lansbury RD (eds), Working Futures: the Changing Nature of Work and Employment Relations in Australia (Sydney: Federation Press, 2002) 87–114 at 97.

150. Cf. The Standing Committee on Law and Justice recommended that compliance with a Code of Practice be recognised as a defence as this would make its use more attractive, as well as assist in clarifying and simplifying the law. See Standing Committee on Law and Justice, Note 1 at [5.3.10].

151. See generally Part 4 of the Act on Industry Codes of Practice. Sections 46(1) and 46(2) of the Act specifically deal with the use of such Codes. See also s.28 which outlines the available defences. NSW Department of Industrial Relations, Note 8 at 63; WorkCover Authority of NSW, Note 74 at [1.5.5].

152. See Adecco’s submissions to the NSW Labour Hire Task Force. See NSW Department of Industrial Relations, Note 8 at 64.

153. Swift, Note 19 at 80.

154. Professor R McCallum’s evidence to the Standing Committee on Law and Justice on 26/8/98. Standing Committee on Law and Justice, Note 1 at [5.3.7].

155. Whilst some guidance material for the management of workplace health and safety in the labour hire industry is available in other States it has generally been criticised for being inadequate (e.g. see the Guide to Managing Health and Safety in the Labour Hire Industry 1999 (Qld); Guide to Workplace Health and Safety Assessment in the Labour Hire Industry 2001 (Qld); Guidelines for Managing Health & Safety in the Labour Hire Industry 2001 (SA)). See also Underhill, Note 12 at 35.

156. Commissioner Cole in his Final Report of the Royal Commission into the Building and Construction Industry recommended the development of a Code of Conduct and Practice for Labour Hire in the building and construction industry. See Recommendation 100. Commissioner Cole indicated that the Code should address, amongst

other things, the issue of ‘who is responsible for the safety of the labour hire worker on site’. See Cole TRH, Final Report of the Royal Commission into the Building and Construction Industry Report, Vol. 8 Reform—National Issues Part 2, 2003, [28] and section 10 generally pp79–90. See also NSW Department of Industrial Relations, Note 8 at 65–66 which unanimously recommended the development of an education campaign to increase occupational health and safety awareness and understanding.

157. Connolly, Note 43 at [5.3]; Duetsch S, Occupational Health and Safety: Challenges for Industrial Relations (Working Paper No. 7, ACIRRT, University of Sydney, 1990) 13.

158. Recent and impending inquiries into occupational health and safety issues include, amongst others: The Queensland Government’s 2001 review into the Workplace Health and Safety Act 1995 (Qld) which as a result has been recently amended; the NSW Labour Hire Task Force Report, 2001; the Stevens’s Review of the South Australian Industrial Relations System, 2002; the Review of Workers Compensation and Occupational Health, Safety and Welfare Systems in South Australia, 2003; Laing Review into the Occupational Safety and Health Act 1984 (WA), 2002; Laing Review of the Mines Safety and Inspection Act 1994 (WA), 2003; the Economic Development Committee of the Victorian Government Inquiry into the labour hire industry (which will include an examination of occupational health and safety issues) to commence in September 2003; the Productivity Commission’s Inquiry into National Frameworks for Workers’ Compensation and Occupational Health and Safety which will deliver its final report to Government by 13 March 2004.

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OCCUPATIONAL HEALTH & SAFETY · Employment Lawyers Sydney The changing landscape of labour organisation presents new and interesting challenges for the regulation of workplace safety