Baker v Markellos - [2012] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BAKER v MARKELLOS
[2012] SASCFC 114
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
3 October 2012
EMPLOYMENT LAW - EMPLOYMENT RELATIONSHIP - NATURE OF
EMPLOYMENT LAW - EMPLOYMENT RELATIONSHIP - ASCERTAINING EXISTENCE AND NATURE OF RELATIONSHIP - RIGHT OF CONTROL
EMPLOYMENT LAW - OTHER RIGHTS AND DUTIES OF PARTIES - DUTY OF EMPLOYEE TO PERFORM DUTIES WITH REASONABLE CARE AND NEGLIGENCE OF EMPLOYEE - NEGLIGENCE OF EMPLOYEE
EMPLOYMENT LAW - RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PARTIES - LIABILITIES OF EMPLOYER - FOR CRIMES, OFFENCES AND ILLEGAL ACTS OF EMPLOYEE
Appeal from a decision of the Full Bench of the Industrial Relations Court of South Australia ordering that a conviction recorded by an Industrial Magistrate be set aside and a complaint against the defendant and respondent be dismissed - the defendant was charged on complaint and had been convicted by the Industrial Magistrate of a breach of section 22(2)(b) of the Occupational Health, Safety and Welfare Act 1986 (SA) - whether the defendant was an employee or self-employed - whether the defendant was deemed an employee under section 4(2) of the Act.
Held per the Court: Appeal dismissed.
Held per Gray J (Sulan J concurring): It was open to Judges McCusker and Farrell of the Industrial Relations Court to conclude that the defendant was engaged by Jean Bryant Fisheries Pty Ltd under a contract of employment and was not self-employed - the prosecution failed to establish an essential element of the charge - it was open to Judge Hannon to conclude that he was not satisfied beyond reasonable doubt that the defendant was self-employed - section 4(2) provides a deeming provision in respect of the word employee - the defendant was deemed to be an employee for the purposes of Part 3 of the Act - the defendant cannot be liable under section 22(2).
Held per Nicholson J: The respondent was engaged to perform work for Jean Bryant Fisheries Pty Ltd - that work was in the course of trade or business carried on by that entity - according to section 4(2) of the Occupational Health, Safety & Welfare Act the respondent is taken to have been employed by Jean Bryant Fisheries Pty Ltd and is not to be characterised as a “self-employed person” for the purpose of section 22 of the Act - the respondent therefore falls outside the operation of section 22 of the Act.
Occupational Health, Safety & Welfare Act 1986 (SA) s 4, s 4(2), s 19, s 20, s 21, s 22, s 23, s 23A, s 24, s 24A, s 25 and s 26, referred to.
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd & Anor [2001] SASC 199; Markellos v Baker [2012] SAIRC 9; Beckwith v The Queen (1976) 135 CLR 569; Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31; R v Hughes (2000) 202 CLR 535; Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337; Muller v Dalgety and Company Ltd (1909) 9 CLR 693, considered.

BAKER v MARKELLOS
[2012] SASCFC 114
Full Court: Gray, Sulan, Nicholson JJ
GRAY J.

This is an appeal by a complainant from the decision of the Full Court of the Industrial Relations Court of South Australia ordering that a conviction recorded by an Industrial Magistrate be set aside and that a complaint against Arthur Markellos, the defendant and respondent, be dismissed.
The Trial
The defendant was charged on complaint with a breach of section 22(2)(b) of the Occupational Health, Safety and Welfare Act 1986 (SA). The complaint was in the following terms:
On 1 November 2005, on a South Australian ship, the second defendant, being a self-employed person failed to ensure, so far as was reasonably practicable, that another person, namely Giacomo Salvemini, not being an employee employed or engaged by the second defendant, was safe from injury and risks to health while he was in a situation where he could be adversely affected through an act or omission occurring in connection with the work of the second defendant.
Contrary to section 22(2)(b) of the Occupational Health, Safety and Welfare Act 1986.
Particulars
(a)The second defendant was a self employed person engaged by the first defendant as the skipper of a fishing vessel, “Jean Bryant” (“the vessel”).
(b)At the material times Giacomo Salvemini was employed or engaged by the first defendant as a deck hand on the vessel.
(c)Giacomo Salvemini exposed to a risk of injury at work, and was killed, whilst he was assisting in the retrieval of a fishing net and associated equipment and its winding onto a spool fixed to the deck of the vessel (“the task”).
(d)Whilst Giacomo Salvemini was performing the task, the second defendant was in control of the operation and speed of the spool.
(e)The second defendant, whilst operating the spool, failed to ensure as far as reasonably practicable that Giacomo Salvemini was, whilst he was in a situation where he could be adversely affected by an act or omission of the second defendant, safe from injury and risks to health in that he:
(i)failed to provide any, or adequate, instruction to Giacomo Salvemini to at all times stand clear of the spool whilst he could become entangled;
(ii)failed to ensure that Giacomo Salvemini was at all times standing clear of the spool whilst he could become entangled;
(iii)failed to provide any, or adequate, instruction to Giacomo Salvemini to at all times maintain a line of sight with the operator of the spool whilst it was moving;
(iv)failed to maintain at all times a line of sight with Giacomo Salvemini whilst the spool was moving;
(v)failed to stop the spool if Giacomo Salvemini was not within his line of sight;
(vi)failed to provide any, or adequate, supervision to Giacomo Salvemini in the performance of his duties.
The complaint also included three counts charging Jean Bryant Fisheries Pty Ltd with offences against section 19 of the Occupational Health, Safety and Welfare Act. The second count was an alternative to the first count. The Industrial Magistrate, following the trial, convicted Jean Bryant Fisheries on the first count. The other counts were withdrawn.
The substance of the allegations being made were that Jean Bryant Fisheries was the owner and operator of a fishing vessel, the Jean Bryant, and that at all material times Giancomo Salvemini was employed or engaged by Jean Bryant Fisheries as a deckhand on the Jean Bryant. It was said that on 1 November 2005, Mr Salvemini was exposed to a risk of injury at work and was killed while he was assisting in the retrieval of a fishing net and associated equipment in its winding on to a spool fixed to the deck of the Jean Bryant.
Following a trial conducted before an Industrial Magistrate between 4 May 2009 and 18 October 2010, the defendant was convicted as charged. The primary reasons of the Magistrate were delivered on 2 July 2010 with an addendum published on 29 November 2010.
It is to be observed that one of the matters to be established by the prosecution was that the defendant was a “self-employed person” and that the conduct alleged was undertaken in that capacity. It was agreed at trial, on appeal to the Industrial Relations Court and on this appeal that an essential element of the offence was that the defendant was self-employed. In his reasons, the Magistrate considered whether the defendant was a “self-employed person” and not employed by the company that had engaged him. The Magistrate concluded that the element of the charge that the defendant was a self-employed person had been established beyond reasonable doubt. The Magistrate also concluded that each of the other elements of the charge had been proved beyond reasonable doubt. As a consequence, the defendant was convicted as charged.
The Appeal to the Industrial Relations Court
Before the Industrial Relations Court, three grounds of appeal were advanced. It is convenient to refer to the reasons of Judge Hannon to identify each of these grounds:[1]
The [defendant] raised three grounds of appeal. First, he complained that the Magistrate erred in concluding that he was a self-employed person in failing to give adequate weight to certain aspects of the relationship which favoured a conclusion that the [defendant] was an employee. In particular, the [defendant] submitted that insufficient weight was given to the fact that the company not only supplied and maintained the vessel and all but some personal equipment, but also retained control and lawful authority to command the [defendant] as skipper of the vessel, and actually exercised control over the fishing activities conducted by the [defendant]. In addition, the [defendant] contended that the Magistrate wrongly took into account an irrelevant factor, being the [defendant’s] longstanding operation of his own fishing business before his engagement by the company, and his apparent intention to resume that activity upon completion of his relief work on the vessel. These considerations, contended the [defendant], should have resulted in a conclusion that the competing indicia were finely balanced, and that even if a conclusion remained open that he was a self-employed person by application of the civil standard of proof on the balance of probabilities, the evidence was not capable of founding a conclusion that it had been proven beyond reasonable doubt that the [defendant] was a self-employed person for the purposes of s 22(2) of the Act.
The second and third grounds of appeal raised by the [defendant] are relevant only if his alleged status as a self-employed person for the purposes of s 22(2) of the Act is accepted as having been proven. As to the second ground, the [defendant] submitted that even if he was a self-employed contractor in supplying his services to the company as a relief skipper having regard to the common law test, nevertheless he must be taken to have been employed by the company by virtue of s 4(2) of the Act, given that he had been engaged to perform work “in the course of a trade or business carried on” by the company. The [defendant] contended that s 4(2) was a deeming provision which had broad application for the purposes of the Act such that, if he was a deemed employee under s 4(2) of the Act, he could not have an alternative status as a “self-employed person” for the purposes of s 22(2) of the Act.
The third ground was that the Magistrate erred as a matter of law in rejecting the [defendant’s] contention that the evidence could not exclude the possibility that any failing on his part was the product of his inattention, distraction or lack of due care; and further in not finding that the evidence did not establish that there was anything reasonably practicable that might be done to prevent such human error.
[1] Markellos v Baker [2012] SAIRC 9, [31]-[33].
The Court found in the defendant’s favour in respect of the matters raised in the first ground, but rejected the second and third grounds. The appeal was allowed, the conviction set aside and an order made dismissing the complaint.
On appeal to this Court, the complainant and appellant, Neill Thomas Baker, contended that the Court had wrongly allowed the first ground of appeal. The defendant filed an alternative notice of contention asserting that the Court was wrong to have rejected the second ground of appeal. As a consequence, two issues were debated before this Court – whether the defendant was an employee of Jean Bryant Fisheries or self-employed and whether, if he was self-employed, he was in accordance with section 4(2) of the Occupational Health, Safety and Welfare Act taken to be “employed” by Jean Bryant Fisheries.
Before coming to discuss the reasons of the Industrial Relations Court, it is convenient to set out the relevant provisions of the Occupational Health, Safety and Welfare Act.
Part 3 of the Act relevantly provides:
19—Duties of employers
(1)     An employer must, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular—
(a)must provide and maintain so far as is reasonably practicable—
(i)    a safe working environment;
(ii)    safe systems of work;
(iii)     plant and substances in a safe condition; and
(b)must provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and
(c)must provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.
Maximum penalty:
(a)     for a first offence—Division 2 fine;
(b)    for a subsequent offence—Division 1 fine.
(3)     Without derogating from the operation of subsection (1), an employer must so far as is reasonably practicable—
(a)monitor the health and welfare of the employer’s employees in their employment with the employer, insofar as that monitoring is relevant to the prevention of work-related injuries; and
(b)keep information and records relating to work-related injuries suffered by employees in their employment with the employer and retain that information and those records for such period as may be prescribed; and
(c)provide information to the employer’s employees (in such languages as are appropriate) in relation to health, safety and welfare in the workplace (including the names of persons to whom the employees may make inquiries and complaints about matters affecting occupational health, safety or welfare); and
(d)ensure that any employee who is to undertake work of a hazardous nature not previously performed by the employee receives proper information, instruction and training before he or she commences that work; and
(da)keep information and records relating to occupational health, safety or welfare training undertaken by any of the employer’s employees during their employment with the employer; and
(e)ensure that any employee who is inexperienced in the performance of any work of a hazardous nature receives such supervision as is reasonably necessary to ensure his or her health and safety; and
(f)ensure that any employee who could be put at risk by a change in the workplace, in any work or work practice, in any activity or process, or in any plant—
(i)is given proper information, instruction and training before the change occurs; and
(ii)receives such supervision as is reasonably necessary to ensure his or her health and safety; and
(g)ensure that any manager or supervisor is provided with such information, instruction and training as are necessary to ensure that each employee under his or her management or supervision is, while at work, so far as is reasonably practicable, safe from injury and risks to health; and
(h)monitor working conditions at any workplace that is under the management and control of the employer; and
(i)ensure that any accommodation, or eating, recreational or other facility, provided for the benefit of the employer’s employees while they are at work, or in connection with the performance of their work, and under the management or control of the employer (either wholly or substantially), is maintained in a safe and healthy condition.
20—Employers’ statements for health and safety at work
(1)    Every employer must—
(a)prepare and maintain, in consultation with—
(i)    health and safety committees; and
(ii)     the employer’s employees; and
(iii)     any health and safety representative who represents those employees; and
(iv)    on the application of an employee—a registered association of which that employee is a member; and
(v)    if the employer so decides—any other registered association nominated by the employer of which the employer is a member,
policies relating to occupational health, safety and welfare at the workplace; and
(b)    —
(i)    prepare and keep up to date a written statement setting out with reasonable particularity the arrangements, practices and procedures at the workplace protecting the health and safety of the employer’s employees at the workplace; and
(ii)     take reasonable steps to bring the contents of that statement to the notice of those employees.
Maximum penalty: Division 6 fine.
21—Duties of workers
(1)    An employee must take reasonable care to protect the employee’s own health and safety at work.
Maximum penalty: Division 7 fine.
(1a) An employee must take reasonable care to avoid adversely affecting the health or safety of any other person through an act or omission at work.
Maximum penalty: Division 6 fine.
(1b) An employee must so far as is reasonable (but without derogating from subsection (1) or (1a) or from any common law right)—
(a)use equipment provided for health or safety purposes; and
(b)obey reasonable instruction that the employer may give in relation to health or safety at work; and
(c)comply with any policy that applies at the workplace published or approved by the Minister after seeking the advice of the Advisory Committee; and
(d)ensure that the employee is not, by the consumption of alcohol or a drug, in such a state as to endanger the employee’s own safety at work or the safety of any other person at work.
Maximum penalty: Division 6 fine.
(2)    In determining the standard of care applicable to a worker whose native language is not English and who is not reasonably fluent in English regard must be had to—
(a)whether information relating to occupational health and safety has been reasonably available to the worker in a language and form that the worker might reasonably be expected to understand; and
(b)whether instruction or training of the worker (if any) has been carried out in a language and form that the worker might reasonably be expected to understand.
22—Duties of employers and self-employed persons
(1)    An employer or a self-employed person must take reasonable care to protect his or her own health and safety at work.
Maximum penalty: Division 7 fine.
(2)    An employer or self-employed person must ensure, so far as is reasonably practicable, that any other person (not being an employee employed or engaged by the employer or the self-employed person) is safe from injury and risks to health—
(a)while the other person is at a workplace that is under the management and control of the employer or self-employed person; or
(b)while the other person is in a situation where he or she could be adversely affected through an act or omission occurring in connection with the work of the employer or self-employed person.
Maximum penalty:
(a)for a first offence—Division 2 fine;
(b)for a subsequent offence—Division 1 fine.
Section 4 is contained in Part 1 of the Act and deals with preliminary matters. Section 4 is headed “Interpretation” and by section 4(1), inter alia, provides:
contract of service means—
(a)a contract under which one person is employed by another;
(b)a contract of apprenticeship;
(c)a contract, arrangement or understanding under which a person receives on-the-job training in a trade or vocation from another;
…
employee means a person who is employed under a contract of service or who works under a contract of service;
employer means a person by whom an employee is employed under a contract of service or for whom work is done by an employee under a contract of service;

Section 4(2) provides:
For the purposes of this Act, where a person (the contractor) is engaged to perform work for another person (the principal) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, will be taken to be employed by the principal but the principal’s duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.
Judge Hannon delivered the principal judgment of the Full Bench of the Industrial Relations Court. In relation to the grounds of appeal, the Judge first addressed whether the complainant had established that the defendant was a self-employed person. In that process, the Judge undertook a careful review of the crew agreement between the defendant and Jean Bryant Fisheries. Judge Hannon then considered that the Magistrate had erred, relevantly concluding:[2]
[2] Markellos v Baker [2012] SAIRC 9, [75]-[80].
As a result of what I have identified as errors in the Magistrate’s approach, I consider that he gave too little weight to aspects of the control issue indicative of an employment relationship, and too much weight to the [defendant’s] background as a self-employed operator of his own business. In the context of civil proceedings in which the nature of an engagement for the provision of services must be determined, these errors may not have had crucial significance. It might be accepted that the indicia remained finely balanced, and in such circumstances the label given by the parties to their arrangement might be sufficient to lead to a conclusion that, on the balance of probabilities, there was a contract for services.
In this case however, an essential element of the complaint for the purposes of s 22(2) of the Act is not made out unless it is established beyond reasonable doubt that the [defendant] was a self-employed person. I do not consider the evidence was capable of supporting such a conclusion. In so stating, I do not accept the [defendant’s] submission that the Magistrate, having found at an earlier stage of the proceedings that there was a case to answer on the self-employment issue, failed to appreciate that in the final analysis, a higher threshold of proof had to be overcome than at the case to answer stage. A fair reading of the Magistrate’s reasons indicates that he appreciated this, and understood that self-employment had to be established beyond reasonable doubt.
The defect in the Magistrate’s conclusion is that, once the evidence as to control is put properly in context, then at best, in terms of the [complainant’s] case, the competing considerations are finely balanced having regard to the totality and the practical realities of the relationship. The evidence at its highest may have allowed a Court to feel an actual persuasion that the [defendant] was a self-employed person so as to satisfy the civil onus. However, the evidence cannot satisfy the “high degree of probability” required for proof beyond reasonable doubt, such as to leave only a remote possibility of the alternative conclusion. As stated in Rejfek v McElroy:
“The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in any civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensible to the support of a conviction upon a criminal charge.”
Put in another way, the evidence cannot exclude any reasonable or rational hypothesis consistent with innocence before the [defendant’s] guilt could be established: R v Boyle. Nor could it be said that a reasonable doubt as to the [defendant’s] status could not be entertained in the circumstances: R v Fouyaxis.
The conclusion which must follow is that the essential element of the offence under s 22(2) that the [defendant] was a self-employed person was not proven beyond reasonable doubt. Accordingly, the conviction cannot stand. The fact that this outcome may highlight a difficulty for prosecutions dependent on establishing whether the status of a person charged is that of either employee or contractor, in that the [defendant], if charged with an offence as an employee under s 21 of the Act, might equally have escaped conviction on account of an inability to prove his status as an employee beyond reasonable doubt, cannot avail the [complainant]. Each case brought in reliance upon the asserted state of employment or self-employment must stand or fall on the basis of the cogency of the evidence presented.
The conclusion as to the insufficiency of the evidence with respect to the [defendant’s] status for the purposes of s 22(2) of the Act disposes of the appeal. However, in case the matter is taken further, and a different view is taken as to whether the [defendant’s] alleged status as a self-employed person was proven beyond reasonable doubt, it is necessary to address the [defendant’s] two alternative contentions.
[Footnotes omitted.]
Judge Hannon then addressed the question of whether the defendant was a deemed employee under section 4(2) of the Act. The Judge rejected this contention, concluding:[3]
In my view the [complainant] correctly submitted that the proper construction of s 4(2) of the Act could not have the result for which the [defendant] contended. Section 4(2) extends the obligations of principals who engage contractors by expanding the range of persons who may be taken to be in an employment relationship with the principal, but at the same time limits the extent of the duty to that extended range of employees by confining the duty to matters over which the principal has control.
[3] Markellos v Baker [2012] SAIRC 9, [84].
The other members of the Court, Judge McCusker and Judge Farrell, in their joint reasons agreed with Judge Hannon, rejecting grounds two and three and, in that respect, agreed with his reasons. Their Honours also agreed that the first ground of appeal should be allowed with the consequence that they agreed with the orders that the appeal be allowed and the complaint dismissed. However, their reasons for agreeing that the first ground of appeal was made out differed from those of Judge Hannon.
Judge McCusker and Judge Farrell reasoned:[4]
[4] Markellos v Baker [2012] SAIRC 9, [7]-[11].
The learned Magistrate dealt with the innate independence of a “skipper” on his boat. He referred to the fact that the [defendant] was a “relieving skipper”, that apart from the work for Jean Bryant Fisheries Pty Ltd he owned his own boat and usually operated it and had done so for 25 years. It appeared he operated a business of his own. Reference was made to the autonomy and the special qualifications he brought to the task together with the authority he had over his crew. However with respect, these matters did not support a contract for services. The point is made in Hepple and O’Higgins and in the following terms:
“The control test assumes that the employer is both a manager and a technical expert; in other words, it reflects a stage of society in which the employer could be expected to be superior to the employee in skill and knowledge. ... However, as Professor Kahn-Freund has pointed out, ‘to say of the captain of a ship, the pilot of an aeroplane, the driver of a railway engine, of a motor-vehicle or of a crane that the employer “controls” the performance of his work is unrealistic and almost grotesque’. In these cases the employer is in no position to instruct the skilled worker how to do his job. Indeed, a skilled worker who simply relied on his employer’s directions without exercising his own professional judgment might actually be in breach of his contract.”
This expression is consistent with the view of the High Court in Zuijs v Wirth Brothers Pty Ltd and in the following terms:
“The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters. ...”
It was acknowledged by the learned Magistrate in his findings there was evidence of a right to control by the owners though the circumstances of its occasion were limited. The indicia is in our view supportive of employment.
What might have received more emphasis in the analysis was the fact the boat was owned by Jean Bryant and all the needed equipment was supplied by it together with all fuel and provisions. The [defendant] provided his personal skill. The provision of wet weather gear and personal flotation devices with respect is neither here nor there. These circumstances give rise to the often repeated distinction in this area of the law between the provision of “mechanical traction” and the supply of “the work and skill of a man”. The indicia is in our view supportive of employment.
That feature was strongly complemented by the term which forbad assignment of the rights under the agreement without first obtaining the written consent of the operators and that the [defendant] was to devote the whole of his time and attention to his obligations and not engage in other business without prior consent of the operator. These provisions indicate strongly that this was a contract of personal service. The prohibition of a right to assign or delegate is arguably “the single most determinative factor” in the determination of the type of relationship. In our opinion this feature points strongly in favour of a contract of employment.
For this reason we find errors in the learned Magistrate’s decision. The proper conclusion ought to have been that the [defendant] was engaged by Jean Bryant under a contract of employment. As agreed by the Crown if that conclusion was reached, the prosecution had to fail. We agree with Judge Hannon the appeal must be allowed and the conviction set aside and the complaint against the [defendant] dismissed.
[Footnotes omitted.]
The Appeal to this Court
The issue to be determined on the appeal is whether the complainant has established beyond reasonable doubt that the defendant was self-employed within the meaning of section 22(2) of the Occupational Health Safety and Welfare Act. It is to be observed that there is no reference in the legislation to the term “independent contractor” or the term “vicarious liability”. The Act contains no definition of the term “self-employed”.
It might be suggested that self-employed means no more than employed by oneself in contrast to being employed by another. To put the question at its simplest – was the defendant employed by Jean Bryant Fisheries. The determination of this question involves, at least in part, questions of fact. In the summary that follows, I have drawn on the uncontested factual summary appearing in the reasons of Judge Hannon.
The Jean Bryant was a shark fishing vessel. The usual crew comprised the skipper and one or two crewmen. On 1 November 2005, the defendant was the skipper of the Jean Bryant and was assisted by two crewmen, Mr Salvemini as deck hand and Nicholas Toumazos who was assigned to assist Mr Salvemini and act as a fish filleter.
The defendant was performing the duties of skipper in place of the usual skipper of the Jean Bryant. For this purpose, the defendant had entered into a crew agreement with Jean Bryant Fisheries. The defendant was an experienced fisherman who had owned and operated his own commercial fishing business, including a number of fishing vessels, for approximately 25 years. The crew agreement was dated 1 October 2005. The agreement was to operate over two fishing expeditions conducted by the Jean Bryant in the west of South Australia in the Great Australian Bight. The first expedition was for a period of about five or six days ending on 20 October 2005. The second expedition commenced on 26 October 2005 and was to end on or shortly after 1 November 2005. On the conclusion of the second expedition, the crew agreement was to come to an end.
The Jean Bryant was about 18 metres in overall length. The fishing operations were conducted by use of a large fishing net approximately 3.4 metres in width and 4200 metres in length. The fishing process required the casting of the net into the sea at chosen fishing spots and the retrieval of the net in due course after each “shot”, or setting of the net. This cycle would usually take place two times a day depending on the conditions. The retrieval process involved mechanically winding the net in so that it gathered around a large reel or spool assembly. In the course of this activity the net passed over a spreader bar attached to the spool. The purpose of the spreader bar was to facilitate the even distribution of the net around the spool, with the crewmen providing manual assistance in this regard as necessary. The spool assembly was situated on the port side of the foredeck close to and immediately in front of the wheelhouse from where the skipper would operate the Jean Bryant and supervise fishing activities. A hydraulic motor drove the rotation of the spool and was controlled by the skipper from his position in the wheelhouse.
Because of its height, size and location, the spool presented a very large visual obstacle on the foredeck and obscured a considerable degree of forward vision from the wheelhouse. While the helm and controls on the Jean Bryant were situated on the starboard side of the wheelhouse so that the skipper retained unrestricted vision directly in front of him, the restriction of his vision to his left due to the position of the spool had the result that he could not see crew standing in certain locations in front of the spool and the spreader bar attached to the spool.
The retrieval of the net was a lengthy process which had to be constantly supervised by the skipper with the assistance of his crew. The skipper would stop the operation of the spool as necessary to allow for the retrieval or extraction by crewmen of fish or detritus from the net, or to address any other problems arising during the process.
On the hearing of the appeal to this Court, there was no challenge to the finding that the net retrieval operation was dangerous on account of the risk of those assisting in the process being caught by the net as it was being wound on to the spool and becoming entrapped while the spool was rotating. This risk was enhanced by the operational environment of the Jean Bryant at sea and by the fact that the skipper, being in control of the rotation of the spool, did not have a complete view of areas of danger around the spool and could not observe the activities of crew assisting with the retrieval process if they moved beyond his restricted range of vision. It was accepted that it was both reasonably practicable and regular practice, in the course of net retrieval, to stop the operation of the spool if a member of the crew moved out of the line of sight of the skipper. The defendant had been instructed in this regard.
The incident resulting in Mr Salvemini’s death occurred on 1 November 2005, towards the end of a net retrieval following the second shot of the day. The only witness to the incident, Nicholas Toumazos, observed that Mr Salvemini had been standing adjacent to the front of the spool in a position where he was not in view of the defendant, nor able to see the defendant. A length of rope attached to the moving net caught Mr Salvemini and drew him over the spreader bar and into the spool. Nicholas Toumazos called out to the defendant who immediately brought the spool to a halt. Mr Salvemini was trapped against the net between the spool and the spreader and was dead by the time he was able to be freed. The defendant admitted during an interview with an investigator that Mr Salvemini and Nicholas Toumazos had been out of his sight for up to half a minute before the incident, during which time he presumed they were conversing with each other.
The Crew Agreement
The crew agreement appears to be a standard form typed document in which the date of the agreement and the names of the parties are handwritten, as are the names of the parties in the execution clauses. Almost identical standard forms of crew agreements were entered into by Mr Salvemini and Nicholas Toumazos.
Judge Hannon summarised the salient features of the crew agreement between Jean Bryant Fisheries and the defendant in unchallenged terms and I have drawn on his reasons in the summary that follows.
Clauses 2 and 4 of the agreement permitted the defendant to work on the vessel on a “share fishing basis” from 15 October 2005 in such manner as good fishing practice and skills of the trade determined, and to apply his own knowledge and skills to assist the company in the conduct of the business of fishing in accordance with approved industry methods and to their mutual advantage.
Clause 5 set out various means by which the agreement might be determined, including by Jean Bryant Fisheries upon no less than 24 hours notice and the defendant upon seven days notice.
Clause 7 provided that the property in all fish and other marine life caught on the vessel would vest in Jean Bryant Fisheries as soon as the catch was landed on the vessel and would be sold by Jean Bryant Fisheries on its behalf and on behalf of crew members. Clause 8 required that the defendant be paid a share of the gross proceeds of the sale of a particular catch, which under item 2 of the Schedule to the agreement was fixed at 22 per cent with payment to be made under clause 9 as soon as practicable, but at least every two months, unless otherwise agreed.
Clause 11 provided that nothing in the agreement was intended to create any partnership or joint ownership of the Jean Bryant, or equipment between Jean Bryant Fisheries and the defendant, or of any fishing licence owned by Jean Bryant Fisheries.
By clause 12, the parties acknowledged that the basis of the agreement was that the defendant was not an employee of Jean Bryant Fisheries, but was an independent contractor, and that accordingly the normal responsibilities accruing to an employer in an employer/employee relationship would not be applicable. Consistently with this arrangement, the parties acknowledged under clause 13 that the defendant would be responsible for the payment of income tax in respect of remuneration derived from his activities and would not be entitled to workers compensation, holiday pay, long service leave or other employee entitlements, and further, that he was responsible for effecting his own sickness and accident insurance. Clause 13 also provided that “the Crewman were to supply and wear his own self inflating suit and/or life jacket and waterproofs” and that Jean Bryant Fisheries “shall not be responsible for provisioning any vessel with stores, the responsibility for stores in every voyage resting with the crewman”.
Under clause 14, Jean Bryant Fisheries agreed to pay all costs and expenses of and incidental to the repairing of the vessel and all machinery, plant and other equipment erected on the vessel. By clause 15, the defendant acknowledged that it was a condition of the agreement that during such periods as Jean Bryant Fisheries reasonably required, he would devote such of his time and undertake to perform and carry out such work as Jean Bryant Fisheries required to assist in the maintenance of the Jean Bryant and fishing gear used on the Jean Bryant.
Clause 16 provided that the defendant would devote the whole of his time and attention to carrying out his obligations under the agreement and would not, without the prior consent of Jean Bryant Fisheries, engage in any other business. By clause 19, the defendant agreed not to assign the benefit of the agreement without first having obtained the written consent of Jean Bryant Fisheries.

Under clause 22, the defendant agreed to comply with all regulations relevant to fishing activities conducted by the vessel and to fully indemnify Jean Bryant Fisheries against all loss, damage, or cost howsoever incurred as a result of any act or default on the part of the defendant so as to cause cancellation or suspension of Jean Bryant Fisheries’ licence or diminution in the value of it, or any other financial loss or damage howsoever arising.
Clause 23 made provision with respect to obligations of parties if any amount payable under the agreement was subject to goods and services tax. Clause 24 provided that if a crewman was a body corporate, and was engaged to provide the services of a person exercising responsibilities as a skipper of any vessel, then the crewman as the body corporate would be responsible for all of the obligations as if it were a natural person, and would ensure that the person providing services held appropriate qualifications.
A director of the company and its responsible officer gave evidence that the crew agreement was a common form of agreement used across the board in the fishing industry. Jean Bryant Fisheries provided the Jean Bryant, supplied all fishing and general safety equipment and was responsible for fuel and maintenance. Jean Bryant Fisheries separately engaged all three crew members. All were required to devote the whole of their time and attention to carrying out their engagements under the agreement and were not allowed to engage in any other business or to assign the benefit of the agreement without prior consent. The crew members provided no tools of trade. The crew members accepted an obligation to work only by application of their skills and knowledge in the industry. All fish caught immediately vested in Jean Bryant Fisheries and the crew members received no interest in the fish or the fishing operation. The crew members were not exposed to any financial impost or risk and made no contribution to the running costs of the Jean Bryant. Ultimately, the crew members were to receive a specified fixed share of the gross proceeds of sale of the catch. The fixed share received by the defendant was 22 per cent. These factors were considered by Judge Hannon to be indicia of an employment arrangement.
A number of factors were also identified by Judge Hannon as indicators of self-employment. In that respect, his Honour observed:[5]
The [complainant] relied on other clauses as indicators of self-employment including that the [defendant] was to be paid by way of result having regard to cls 2, 4 and 8 with an implicit mutuality of benefit arising from engagement in a joint share fishing enterprise which shared risk and reward; that the agreement contained no provision allowing the company to direct the [defendant] in the performance of his duties whilst the vessel was at sea, but merely provided that the [defendant] was to work on any vessel designated by the company “in such manner as good fishing practice and skills of the trade determine” (cl 4); that as well as describing the [defendant] as an independent contractor (cl 12), the agreement expressly made no provision for workers compensation, leave or other employee entitlements such as superannuation, and recorded that the [defendant] was to be responsible for payment of income tax on his remuneration (cl 13); that the agreement required the [defendant] to indemnify the company for any financial loss, claim or damage or demand howsoever arising (cl 22); that provision was made for responsibility for payment of GST (cl 22), which the [complainant] contended could have no application to payments if potentially they were to include income under an employment relationship, and thus was indicative of a contract intended only to be with a self-employed person; and that a similar implication flowed from cl 24 which contemplated that the company might contract with a corporate entity for the provision of crew.
[Footnote omitted.]
[5] Markellos v Baker [2012] SAIRC 9, [50].
On the topic of control, Judge Hannon reasoned:[6]
A consideration of the control issue requires the nature of the fishing operations conducted by the company to be put in perspective. One would expect that [Jean Bryant Fisheries], as the operator of the vessel, and with a substantial capital investment in the fishing enterprise, would exert overall control as to when and where the vessel was to undertake fishing activities, regardless of whether the skipper was engaged as an employee or an independent contractor. This is particularly so given the past experience of the company with the productivity of various fishing grounds.
As … Terry Toumazos [the Director of Jean Bryant Fisheries] explained, over the years the company had retained a record of catches made by its vessels in the different areas fished at different times of the year. Thus, although skippers of vessels might be very experienced, they might not have the exposure to knowledge of certain fishing areas available to the company through its records. He said that as a result of its accumulated knowledge, the company was able to identify areas which were more productive at certain times of the year, and thus directed its crew to those fishing grounds.
In this context, it could be expected that specific decisions with respect to the manner of the conduct of the fishing operations in the areas to which the vessel was directed would be left for the [defendant] as skipper, who in general had control over when, where and how many shots would be done in a day, or at all, the depth at which the nets would be set, and what the crew would do and how they would perform their tasks. But the making of specific decisions of this nature by the [defendant] is of itself no clear indicator of his status, as he could be expected to make such decisions as a skipper using his skills, knowledge and experience whether he was engaged as an employee or a contractor.
[Footnote omitted.]
[6] Markellos v Baker [2012] SAIRC 9, [63]-[65].
These considerations led Judge Hannon to the conclusion that the Magistrate had given undue weight to what had been described as the degree of autonomy and control exercised by the defendant in regard to the operation of the Jean Bryant. Judge Hannon discussed the evidence led from Terry Toumazos, a company director of Jean Bryant Fisheries, and in that respect concluded:[7]
A reservation of a right to exercise a significant degree of control over the manning of vessels is consistent with the company’s view as to the intent of the contracts it entered into in the form of the agreement with the [defendant]. In this regard, … Terry Toumazos said that whilst he did not know how others considered the arrangement, from the point of the company, as a result of such contracts “we have a lot of control over these people; like we choose to; like that’s the way we operate our company; that’s the way we run our company and we wouldn’t want to have it any other way”.
The apparent restriction on the [defendant’s] autonomy in choosing the number of crew was supported by the answers the [defendant] gave during an interview with investigators following the incident. The [defendant] said that his normal procedure was to work with two crew, although “on the trip previous”, it had been a single crew. He said the varying allocation of crew members arose from differing preferences as to allocation of percentages from the sale of the catch. He stated that in general he would decide whether he wanted to operate with one or two crew “...[B]ut in this case, it was more of the case that The Fish Factory supplied the boat and the crew members. And I was only on board as a Skipper or a Master Class 5 Fisherman.”
The implication of this evidence generally is that, with respect to the trip when the incident occurred, the company reserved to itself the right to determine the number of crew to assist the skipper rather than leaving it to the skipper. This reservation of control indirectly impinged upon the autonomy the skipper would otherwise have had to operate with less crew, and to earn a greater percentage return by choosing to do more manual work than would be required if he was assisted by more than a single crewman. It indirectly impacted on the manner of performance of the work by the skipper. This is indicative of a reservation of a right to exercise control over what were more than incidental or collateral matters as far as the manner of performance of the [defendant’s] work was concerned. It is a factor which reduces the extent to which the autonomy and control otherwise exercised by the [defendant] favours his having the status of a self-employed person. The Magistrate did not have adequate regard to these considerations in assessing the control issue.
[Footnotes omitted.]
[7] Markellos v Baker [2012] SAIRC 9, [70]-[72].
As earlier observed, Judge Hannon reached the conclusion that the Magistrate had made errors in his approach to the evidence and to his weighing of the evidence. The Judge noted that the appeal was by way of rehearing and that, in his view of the whole of the evidence, he was left with doubt as to whether the complainant had proved beyond reasonable doubt that the defendant was self-employed. The Judge expressed the matter in a different way, namely, that the evidence did not, in his view, exclude a reasonable hypothesis consistent with innocence.
The other members of the Industrial Relations Court, as discussed above, reached the conclusion that the defendant was an employee and not self-employed. Their Honours reasons have been extracted above.
The Complainant’s Submissions
On the hearing of the appeal, the complainant submitted that the Court was obliged to evaluate whether the defendant was an employee primarily from the terms of the crew agreement. It was contended that the members of the Industrial Relations Court had not given primary effect to those terms and, in particular, had failed to give adequate weight to a number of the terms.
It was submitted that once evidence was before the Court as to the terms of a contract addressing arrangements of work, a reasonable doubt could not arise as to whether a person is an employee or self-employed. It was contended that the Court was obliged to consider the overall effect of the evidence and reach a conclusion one way or the other. It was further said that in a circumstance where there were indicia either way, the legal difficulty in resolving the relationship could not give rise to a reasonable doubt.
Counsel for the complainant submitted that when the terms of the crew agreement are analysed, the conclusion is clear from five factors that the defendant was self-employed. It was pointed out that Jean Bryant Fisheries was in the business of commercial fishing with the model of leasing and operating a commercial fishing vessel and engaging skippers and crew by share fishing contracts. It retained an interest in a share of the catch. It had a regular skipper. The defendant ran his own business as a fisherman, owned his own vessel and held his own commercial fishing licence. He was not part of Jean Bryant Fisheries’ ordinary operations.
The crew agreement entered into between Jean Bryant Fisheries and the defendant provided that the defendant was to skipper the Jean Bryant. The defendant was to make his own arrangements for workers compensation, insurance and income tax. The agreement provided a mechanism for distributing goods and services tax obligations associated with the contract. Remuneration was on a profit sharing basis. The defendant was to provide his own personal gear, food and provisions. It was submitted that in the circumstances, it was unsurprising that the defendant would be engaged exclusively in the fishing activities of Jean Bryant Fisheries. Further, it was unsurprising that Jean Bryant Fisheries was to provide all of the equipment and machinery for fishing and would fuel the vessel.
Attention was drawn to clause 4 of the agreement which provided that work was to be performed in accordance with approved methods of fishing followed in the fishing industry. It was contended that control effectively lay with the defendant and that the element of control resting with Jean Bryant Fisheries involved no more than directions being given to a self-employed contractor as to tasks to be undertaken and outcomes to be achieved. Finally, it was pointed out that the parties themselves in the crew agreement had expressly stated that the contract was not a contract of employment and that the relationship between the parties was that the defendant was an independent contractor.
The question to be answered is whether the defendant was self-employed. To pose the question whether the defendant was an independent contractor does not directly address the terms of section 22(2). It may be suggested that the legislature specifically avoided the term independent contractor. No doubt, those concerned with the drafting of the legislation were well aware of the difficulties encountered in the civil jurisdiction of the difficulties of resolving questions related to vicarious liability and independent contractors.
The question of whether the defendant was self-employed was primarily a question of fact. It was an element of the offence charged. That element needed to be satisfied according to the criminal burden of proof, that is, beyond reasonable doubt. To express it a different way, the Court had to be satisfied that the prosecution had established that there was no reasonable hypothesis consistent with innocence.
To my mind, a critical area to be examined concerned the issue of control. A review of the crew agreement makes it clear that the defendant was to carry out his responsibilities and obligations under the agreement and, in particular, was to devote the whole of his time and attention to meeting those obligations. The content of those responsibilities and obligations included being the skipper of the Jean Bryant and acting in accordance with good fishing practice and the skills of the trade. He was obliged to assist the operators in the conduct of the business of fishing on and from the Jean Bryant. He was to attend to his responsibilities and to address his obligations according to the most approved methods of fishing followed in the fishing industry.
Jean Bryant Fisheries was responsible for the provision of the Jean Bryant, including the machinery, plant and all other equipment on the vessel. Jean Bryant Fisheries was to provide the fuel for the Jean Bryant and all of the equipment associated with the fishing operation, including the preservation of the catch until sale.
Jean Bryant Fisheries directed the defendant as to where the boat would go to undertake fishing activities and as to the port at which the Jean Bryant was to be docked upon completion of each expedition.
In my view, it was open to Judge McCusker and Judge Farrell to conclude that the right to control held by Jean Bryant Fisheries was an indicium supportive of employment. It was open to Judge Hannon to conclude that Jean Bryant Fisheries exercised a very real control over the activities of the defendant.
It was open to Judge McCusker and Judge Farrell to conclude that the defendant was engaged by Jean Bryant Fisheries under a contract of employment. For these reasons, I would uphold the majority view of Judges McCusker and Farrell that the defendant was engaged under a contract of employment and was not self-employed. As a consequence, the prosecution failed to establish an essential element of the charge.
The determination of this question involved, at least in part, conclusions of fact. It was open to Judge Hannon to reach the conclusion that he was not satisfied beyond reasonable doubt that the defendant was self-employed.
A Deeming Provision
Section 4(2) of the Act requires close consideration and, accordingly, I set out again the text of this section:
For the purposes of this Act, where a person (the contractor) is engaged to perform work for another person (the principal) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, will be taken to be employed by the principal but the principal’s duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.
If the view is to be taken that the defendant was a contractor, then consideration of section 4(2) becomes relevant. The defendant was engaged by the crew agreement to perform work for another person, namely, Jean Bryant Fisheries. That work was to be undertaken in the course of the business carried on by Jean Bryant Fisheries. In accordance with the terms of section 4(2), the defendant was to be taken to be employed by Jean Bryant Fisheries. However, the section limited the obligations of Jean Bryant Fisheries under the Occupational Health, Safety and Welfare Act to those matters over which it has control or would have control, but for some agreement to the contrary between the parties.
It is to be observed that the section applies generally, that is, for the purposes of the Occupational Health, Safety and Welfare Act. There is no attempt to limit the operation of the deeming provision to any particular part of the Act. Elsewhere in the statute, express limitations can be found, for example in section 26, where it is provided that “[f]or the purposes of this Part employee does not include … a self-employed contractor …”. The reference to “Part” in section 26 is a reference to Part 4 addressing health and safety representatives and committees.
Section 4(2) was the subject of consideration by Doyle CJ in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd.[8] The issue under consideration was the extent of the duties owed by the defendant as occupier of the premises where a work accident occurred. A worker had been engaged by a third party contractor who had entered into a contract with the defendant to carry out maintenance work for the defendant at its premises. It was while performing this work that the worker was injured. It was contended that the defendant occupier was to be treated as the employer of the worker as a consequence of section 4(2) of the Occupational Health, Safety and Welfare Act. It followed, it was said, that the defendant failed to discharge the obligation imposed on it by section 19(1) of the Act.
[8] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199.
Doyle CJ relevantly observed:[9]
We were informed by counsel that there are no cases which throw any light on the scope of s4(2). It is a provision which I find puzzling. The submission is simply that Allied was engaged to perform work for ABC “in the course of a trade or business carried on by” ABC and accordingly as Mr Henry was a person employed by Allied to carry out the work, he is deemed to be employed by ABC.
The maintenance work carried by Allied was done to facilitate the conduct by ABC of the trade or business that it carried on at its plant. ABC needed to do the work to carry on its trade or business. Carrying out maintenance work on its premises is something done by ABC as part of its trade or business, and in a sense in the course of that trade or business. But if that suffices for the purposes of s4(2), then whenever a person engaged in trade or business employs a contractor to do work that advances or facilitates that trade or business, the principal will be a deemed employer of any worker employed or engaged by the contractor. On this approach a firm that contracts with a contractor to clean its offices, will be a deemed employer of the cleaners. A business that retains an accountant for accounting advice, or a solicitor for legal advice, will be a deemed employer of the accountants and solicitors who work in those firms. A shop owner who contracts with an electrician to install an electrical fitting in the shop will be a deemed employer of any electrician employed by the contracting electrician. I give these examples merely to illustrate the wide reach of the suggested meaning of the provision. Of course, one must not overlook the limitation found in the latter part of s4(2), and the need to consider the effect of the operative provisions of the OHSW Act. Nevertheless, allowing for all that, the suggested scope is so wide as to make me think that such a meaning could not have been intended.
But, in the end, I have been unable to identify a more limited meaning that fits with the words of the provision. It is tempting to think that the expression “in the course of a trade or business” is to be read in a limited fashion.
Mr Quick QC, counsel for ABC, submits that the provision is not concerned with a contract between an owner and a contractor, but only with a contract between a contractor and a subcontractor. I do not accept that submission. If Parliament had intended to catch only a contract between a contractor and a subcontractor, it would not have used the language it has used. Indeed, the language used points the other way. While I can see a sound policy basis on which Parliament might have legislated along the lines put by Mr Quick, the words used are too general to permit the limited meaning that he suggests. Mr Quick further submits the work that Allied did, repair and maintenance work, was not part of ABC’s trade or business, and so the provision does not apply. My impression is that he was drawing a distinction between a contractor like Allied, and someone such as a contractor delivering ABC’s product to a customer, whom I suspect he would have agreed was performing work in the course of ABC’s trade or business. But this aspect of Mr Quick’s submissions seems to me to be no more than an exercise in redefining ABC’s trade or business - the trade or business does not include maintaining its plant, but does include delivering its product to customers. I accept that one can say, without difficulty, that ABC’s business does not include the business of repairing plant, if one treats that as a freestanding business. But equally one could say that its business does not include the business of delivering goods or products, if one treats that as a freestanding business. The difficulty that the submission encounters is that the work that Allied did was done to enable ABC to continue to conduct its trade or business, and so does appear to be done in the course of ABC’s trade or business. Once again, one can discern the sort of distinction that Mr Quick seeks to draw. But the words of the provision appear to me to be too general to permit the scope of the provision to be limited along those lines. I suspect that such an approach would prove to be an unsatisfactory one, and to involve the drawing of unsatisfactory distinctions.
The statutory expression is sufficiently imprecise to provide no firm criterion for a more limited operation to be given to the provision. Accordingly, with some hesitation and with some unease about the implications of the decision, I accept the submission that Mr Henry is to be deemed for the purposes of the OHSW Act to have been employed by ABC.
[9] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199, [50]-[54].

The complainant in the present proceeding submitted that section 4(2) is limited in its operation, confined in its application to section 19 of the Act and has no application to section 22. The complainant adopted the reasons of Judge Hannon, as follows:[10]
[10] Markellos v Baker [2012] SAIRC 9, [81]-[88].
The [defendant] submitted that, even if it were the case that he was an independent contractor by reference to the common law test, he must be taken to be an employee for the purposes of the Act having regard to the provisions of s 4(2). Those provisions are set out above. The [defendant] contended that their effect is that, for the purposes of the Act, including the operation of s 22(2), his engagement to perform work for the company in the course of a trade or business carried on by the company means he must be taken to have been employed by the company at the time of the incident.
The [defendant] contended that this “deeming provision” was not limited in its effect to s 19 of the Act, and necessarily took him out of the class of “self-employed persons” subject to the obligations imposed by s 22 of the Act, and that accordingly an essential element of an offence under s 22 could not be established. The [defendant] contended that there was no warrant for reading down the breadth and universality of the provisions of s 4(2), given that ss 4(3) and (5), relating respectively to the application of the Act to the performance of work for an employee gratuitously, and to the meaning of references to divisional fines within the Act, enjoyed a similar broad application given that they too applied “for the purposes of the Act”.
Reliance was also placed upon observations of the Chief Justice in the Full Supreme Court decision Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd, and on the terms of s 26, which provides that for the purposes of Part 4 of the Act the term “employee” does not include a “self-employed” contractor, thus being an indicator that if Parliament had intended to restrict the operation of the deeming provision in s 4(2) to s 19 and not to encompass s 22(2), it could have said so.
In my view the [complainant] correctly submitted that the proper construction of s 4(2) of the Act could not have the result for which the [defendant] contended. Section 4(2) extends the obligations of principals who engage contractors by expanding the range of persons who may be taken to be in an employment relationship with the principal, but at the same time limits the extent of the duty to that extended range of employees by confining the duty to matters over which the principal has control.
In the absence of such a provision, there would be a gap in the legislation, in that obligations on an employer as a principal under s 19 would extend only to those of its employees under a contract of service with it in accordance with the definition of “employee” in s 4, and would thus impose no obligation on the employer as principal with respect to contractors engaged by it, or with respect to employees of those contractors, in relation to matters over which the principal has control. In seeking to address this situation by providing that the principal is taken to be the employer of a contractor and employees of the contractor in the circumstances described, s 4(2) does not redefine the categories of employer and employee for all purposes. The definitions in s 4 otherwise continue to apply and should not be taken to affect the operation or scope of s 22(2) of the Act. Thus s 4(2) simply extends the range of actual or deemed employees who may be the subject of a charge under s 19 of the Act. In my view the general observations made by Doyle CJ in Complete Scaffold Services with respect to the potential breadth of the operation of s 4(2) have no application to the confined circumstances in which s 4(2) is to be considered in this matter.
The [complainant] illustrated the anomaly that would arise if the [defendant’s] contention as to the unlimited scope of s 4(2) was correct by reference to the example of a principal or host employer contracting with a labour hire company for the use of an employee of the labour hire company to perform work at the host employer’s site. It was contended that in such circumstances, if the [defendant’s] construction of s 4(2) was correct, the labour hire company would cease to be an employer notwithstanding its contract of employment with its employee, and that both the labour hire company and its employee would be deemed employees for the purposes of the Act. If that were so, any breach of duty as between the labour hire company and the employee could not be addressed by a prosecution of the labour hire company under s 19 even if it was a breach for which the host employer could not be prosecuted, because it related to a matter over which it had no control. The only remedy would be to bring a charge against the labour hire company as an employee under s 21 of the Act which has considerably lower penalties than is the case with a s 19 offence.
This would be an anomalous outcome not consistent with the scheme of the Act and the greater extent of the safety obligations imposed on employers as opposed to employees.
Further, the fact that s 26 of the Act specifically provides that an employee does not include, for the purposes of Part 4, a self-employed contractor, can be taken to be supportive of the [complainant’s] construction of s 4(2). The absence of a similar provision in Part 3 of the Act (in which both s 19 and s 22 are contained) supports the proposition that a person could be taken to be employed for the purpose of one of the general occupational health and safety duties imposed under Part 3 and to be self-employed or an employer for the purpose of another of those duties.
[Footnote omitted.]
The Legislative Scheme
The legislative scheme contained in Part 3 of the Occupational Health, Safety and Welfare Act creates duties, breaches of which lead to penal sanctions. When construing the scheme, the following observations of Gibbs J in Beckwith are to be borne in mind:[11]
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams; Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort. …
[Footnote omitted]
[11] Beckwith v The Queen (1976) 135 CLR 569, 576.
The Objects
The objects of the Occupational Health, Safety and Welfare Act are set out in section 3 and relevantly include:
(a) to secure the health, safety and welfare of persons at work; and
(b) to eliminate, at their source, risks to the health, safety and welfare of persons at work; and
In achieving these objects, Parliament enacted Part 3 of the Act. Part 3 contains general provisions relating to occupational health, safety and welfare. The Part first addresses, through section 19, the duties of employers. In section 20 the obligation of employers to prepare and maintain relevant policies and to make those policies known to employees is addressed. Section 21 addresses the duties of workers. Section 22 further addresses the duties of employers and self-employed persons. Sections 23, 23A, 24 and 24A address the duties of occupiers, designers and owners of buildings, manufacturers and owners of plant. Finally, section 25 addresses duties said to be applicable to all persons. It would appear that Part 3 was intended to comprehensively address statutory duties owed in relation to occupational health, safety and welfare.
The Employee and the Deemed Employee
Pearce and Geddes in their publication, Statutory Interpretation in Australia, observe that the expression “shall be taken to be” is a variant on the expression “deemed” and is to be interpreted in the same manner.[12] In Muller v Dalgety and Company Ltd, Griffith CJ described the term “deemed” as a device for “extending the meaning of some term to a subject matter which it does not properly designate”.[13]
[12] Pearce and Geddes, Staututory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) [4.43] citing Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31, 32; R v Hughes (2000) 202 CLR 535, 551; Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337, 348.
[13] Muller v Dalgety and Company Ltd (1909) 9 CLR 693, 696.
Throughout sections 19, 20, 21, 22 and 25, reference is made to employees. In the ordinary course, applying the rules of statutory construction,[14] it might be expected that the word “employee” carries the same meaning wherever appearing in Part 3.
[14] See a discussion of this principle in Pearce and Geddes, Staututory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) 4.6.
As earlier observed, section 4(2), forming part of the section headed “Interpretation”, provides a deeming provision in respect of the word employee. Importantly, section 4(2) is expressed to be for the purposes of the Act. It follows that section 4(2) is to apply to Part 3 and there is no indication that it should not apply to the word “employee” wherever appearing. It is to be recalled that “employee” is defined to mean “a person who is employed under a contract of service or who works under a contract of service”.[15]
[15] Occupational Health, Safety and Welfare Act 1986 (SA) section 4.
So understood, the legislative scheme provides that where a principal carries on a business and has control of work being undertaken in the course of that business, any person carrying out or assisting in the carrying out of that work is to be taken to be employed by the principal. Section 4(2) deems both a contractor and any person employed or engaged by the contractor to be the subject of the deeming. As a consequence, the legislative scheme creates a situation where, for the purposes of Part 3, a person who carries on a business and controls the work being undertaken in the course of that business is in an employer to employee relationship with all those undertaking that work whether that worker be a direct employee, a contractor or an employee of a contractor.
The relationship of the contractor and the contractor’s employees is affected. Both are deemed to be employees for the purpose of the Act, including Part 3. I repeat that this is the situation only when the principal is in control of the work being undertaken. As a consequence, the relationship of contractor to contractor’s employee is that of employee to employee. The obligations owed by an employee are set out in section 21 of the Act and relevantly include:
(1a)An employee must take reasonable care to avoid adversely affecting the health or safety of any other person through an act or omission at work.
Returning to the question of control, it is to be observed that common sense and practicality would suggest that the person managing and in control of the work being undertaken should carry the responsibilities of the employer as set out in sections 19, 20 and 22 of the Act. It is right that the person managing and in control should be responsible for the provision of adequate facilities for the welfare of employees. Section 19(1)(b) so provides in respect of a workplace “that is under the control and management of the employer”. It is right that the person managing and in control should be responsible to provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health. This is the requirement of section 19(1)(c). These are responsibilities that should rest with one person – the person with management and control.
Section 19(3) imposes further duties on an employer including the monitoring of health and welfare of employees, the keeping of information and records relating to work related injuries suffered by employees, the provision of information to employees in relation to health, safety and welfare in the workplace and the monitoring of working conditions at any workplace that is under the management and control of the employer. Again, these are duties that common sense and practicality suggest reside in the one person.[16]
[16] Other duties are also imposed in subsection 19(3). Subsection 19(3)(d) relates to information, instruction and training in respect of hazardous work; subsection 19(3)(da) relates to the keeping of information and records of training relating to occupational health, safety and welfare, subsection 19(3)(e) relates to providing adequate supervision when an inexperienced employee is required to perform hazardous work, subsection 19(3)(f) relates to the provision of information, instruction, training and supervision in respect of changes in the workplace, and subsection 19(3)(g) relates to ensuring that managers are adequately trained. Further, under subsection 19(1)(a), an employer must provide and maintain so far as is reasonably practicable a safe working environment, safe systems of work, and plant and substances in a safe condition. Under subsection 19(3)(h) an employer must monitor working conditions at any workplace that is under their management and control.Subsection 19(3)(i) requires an employer to ensure that any accommodation or facility provided for the benefit of the employees in connection with the performance of their work is maintained in a safe and healthy condition.
Section 22(2) addresses the obligations of an employer or a self-employed person to keep safe from injury and risks to health of persons in the workplace not engaged by the employer or self-employed person while that other person is under the management and control of the employer or the self-employed person, or where that other person could be adversely affected through an act or omission in connection with the work of the employer or the self-employed person.
On the complainant’s construction of the Act, there would be at least two persons with the obligations with respect to the workplace. A situation may be contemplated where a number of contractors each with their own employees are working on matters over which the principal has management and control. That principal may engage, as an employer, other workers in the workplace. In this circumstance, the complainant’s construction would cast on the principal the obligation to treat each contractor as a deemed employee and the employees of each contractor as the principal’s deemed employees. In addition, the principal would have engaged its own employees in the workplace. The complainant’s construction would compel the conclusion that each contractor would also be an employer of its own employees, notwithstanding that the management and control of the workplace rested with the principal. To whom would a deemed employee turn for instructions. Both the principal and the contractor would be under parallel duties to provide instructions. This example can be compounded by many more. To my mind, this builds complexity on complexity.
The alternative construction provides for a clear and coherent system, one that has the attractions of practicality and common sense. The person who has the management and control of the workplace is the person who is to be treated as the employer. This may be the person who is the operator of the business at which the work is conducted. In the event that contractors are engaged and they and their employees work under the management and control of the principal, there is every reason why the principal should be the deemed employer of both the contractor and the contractor’s employees. In this way, the obligation is placed on the employer who controls the workplace and rests with that person alone. So construed, there is no need to read down the words at the commencement of section 4(2) for the purposes of the Occupational, Health, Safety and Welfare Act. Such an interpretation is consistent with other provisions of the Act that specifically provide when a person is not to be the employee. This interpretation confronts the same difficulties which faced Doyle CJ in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd.[17] The same broad conclusions are reached that it is not possible to sensibly read down section 4(2).
[17] Concrete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199.
As a consequence and as an alternative conclusion, if it were to be concluded that the defendant was self-employed, then in my view he was deemed to be an employee for the purposes of the Act and, in particular, Part 3. As a consequence, the defendant cannot be liable under section 22(2). However, he remains liable to be prosecuted under section 21(1a).
Conclusion
I would dismiss the appeal.
SULAN J: I have read the draft reasons of Gray and Nicholson JJ. I agree that the appeal should be dismissed, for the reasons expressed by Gray J. I add the following observations.
In my view, the interpretation of section 4(2) of the Occupational Health and Safety Act 1986 (SA) is a complete answer to the appeal. I agree with Gray J’s observations of the operation of section 4(2). Judge Hannon limited the observations of Doyle CJ in Complete Scaffold v Adelaide Brighton Cement,[18] by suggesting that they had no application to the confined circumstances in this matter. Judge Hannon did not elaborate upon why he so considered section 4(2) is to be limited. He gave an illustration of an anomaly that would arise if section 4(2) were not read down and limited to extend the range of actual or deemed employees who may be subject to a charge under section 19 of the Act.
[18] Complete Scaffold Services Pty Ltd v Adelaide Brighton CementLtd & Anor [2001] SASC 199.
I disagree that any such anomaly arises. As observed by Gray J, where a principal has control of work being undertaken in the course of the principal’s business, the principal is the employer for the purposes of section 19. Those who carry on, or assist in carrying out that work, whether they are employees or independent contractors, are deemed to be employees under the Act and, in particular, Part 3 of the Act.
That interpretation is consistent with the scheme of the legislation. As Gray J points out, the interpretation urged by the complainant could result in both the principal and the independent contractor being employers for the purpose of section 19. That could lead to the following. For example, in respect of the operation of section 19(1)(a)(ii), both are required to provide a safe system of work. That raises the question of which of the two are in control. The principal who is in control may consider that there is a safe system of work in place. In those circumstances, what is an independent contractor, who is directed to undertake certain work, required to do? Is that contractor required to review the system of work and to review all manuals and directions given by the principal to employees to ensure that the contractor is satisfied that the principal has provided a safe system of work? What if the independent contractor is in disagreement with the principal? The Act provides that only the employer carries that responsibility. Section 4(2) provides that the person who controls the work is to be considered responsible, pursuant to the Act, which includes section 19, other than Part 4, which is excluded under section 26.
The question of who is to be considered to be the employer is determined by considering, first, the trade or business carried on by the principal, and then considering over what part of the trade and business the principal has control. In respect of that part of the work, the principal is required to undertake the duties of employers pursuant to section 19 of the Act.

In my view, that interpretation is consistent with the scheme of the legislation, that the person who has control is subject to the higher duties required pursuant to section 19, and those who are engaged to do work under the control of another are subject to the duties provided in section 21.
I would dismiss the appeal.
NICHOLSON J
I also would dismiss the appeal. In my view, the proper disposition of this appeal does not require the respondent first to be characterised as either an employee or an independent contractor and I have not approached the matter in this way. The proper disposition of the appeal is to be arrived at by a direct application of the relevant statutory language. In this respect, I have reached the same conclusion as has Gray J but by, in part, a different process of reasoning.
I gratefully adopt Gray J’s summary of the proceedings at trial and on appeal to the Full Bench of the Industrial Relations Court including of the judgments of Judges McCusker and Farrell on the one hand and Judge Hannon on the other, together with his Honour’s identification of the relevant provisions of the Occupational Health, Safety & Welfare Act 1986 (SA) (“the Act”) and summary of the relevant facts as taken, principally, from the judgment of Judge Hannon. As a consequence, I can express my position with respect to this appeal relatively briefly.
The ultimate issue in the appeal before this court is whether the complainant has established that the second defendant at trial, the respondent to this appeal, was, at the time Giacomo Salvemini was killed, a “self-employed person” so as to be amenable to prosecution under ss22(2) of the Act. Whilst this is the ultimate issue, its determination involves a consideration of the respondent’s notice of contention which relies upon ss4(2) of the Act.
The prosecution of the respondent was pursued and defended, respectively, by the parties on the basis that, if the proper characterisation of the respondent’s relationship with Jean Bryant Fisheries Pty Ltd (the first defendant at trial) was that of an independent contractor rather than employee, he necessarily was a “self-employed person” for the purpose of ss22(2) of the Act. As such, the central focus at trial and on appeal to the Full Bench of the Industrial Relations Court was the application to the facts of this long-standing distinction, drawn at common law, between an independent contractor who is engaged under a contract for services and an employee who is engaged under a contract of service.
As Gray J points out and as the competing positions set out in the judgments below demonstrate, that distinction can be a difficult one to apply in particular cases. The distinction is notorious for the imprecision of its application. A feature of the present case is that there appears to have been no real contest at trial that the crew member, Giacomo Salvemini, was an employee of Jean Bryant Fisheries Pty Ltd.[19] However, his apparent contract of engagement[20] is in terms virtually identical to that of the respondent.[21] The terms of this contract (said to be generic to the industry) were central to the debate over whether the respondent was engaged as an independent contractor or employee. It may be that on any analysis, s19 applied to Jean Bryant Fisheries Pty Ltd whether Mr Salvemini was an independent contractor or an employee, because even on the appellant’s view of ss4(2) which is more limited than the view I take (discussed further below) this provision operates to expand the reach of s19 so as to embrace employees and independent contractors. Whilst an analysis of Mr Salvemini’s terms of engagement may have been otiose in the prosecution of Jean Bryant Fisheries Pty Ltd, a finding whether he was an employee or an independent contractor might have been helpful to the courts below in testing the conclusions reached with respect to the respondent.
[19] The case book prepared for the appeal to this court does not contain a comprehensive record of the trial. However, Jean Bryant Fisheries Pty Ltd was prosecuted under s19 of the Act which requires, as an element of the offence, that Giacomo Salvemini was its employee. There is nothing in the transcript of the evidence included in the case book nor in the judgment of his Honour Mr Hardy IM to suggest that this point was ever in issue.
[20] Exhibit C5, case book p373. I say “apparent” because the copy in the case book has not been signed by Mr Salvemini. Nevertheless, it appears to be common ground that this represented his terms of engagement.
[21] The respondent’s contract of engagement, exhibit C6, case book p381, contains an additional clause 24. The learned Magistrate in his judgment (case book p453-454) observed that “parallels might be drawn between their contracts of engagement and they are indeed similar but there are differences which I do not think it relevant to explore.” His Honour did not go on to identify these differences.
In any event, it is not this common law distinction to which ss22(2) is necessarily directed. Section 22 provides as follows.
22 – Duties of employers and self-employed persons
(1)An employer or self-employed person must take reasonable care to protect his or her own health and safety at work.
Maximum penalty: Division 7 fine.
(2)An employer or self-employed person must ensure, so far as is reasonably practicable, that any other person (not being an employee employed or engaged by the employer or the self-employed person) is safe from injury and risks to health –
(a)while the other person is at a workplace that is under the management and control of the employer or self-employed person; or
(b)while the other person is in a situation where he or she could be adversely affected through an act or omission occurring in connection with the work of the employer or self-employed person.
Maximum penalty:
(a)for a first offence – Division 2 fine;
(b)for a subsequent offence – Division 1 fine.
Sub-section 22(2) imposes criminal responsibility on an employer or a “self-employed person” with respect to first, a workplace under that person’s “management and control”[22] or second, “an act or omission occurring in connection with [that person’s] work”.[23] The focus is upon the putative defendant’s workplace or work; they are the two “environments” where someone (other than an employee employed or engaged by the putative defendant) is “so far as is reasonably practicable” to be kept “safe from injury and risks to health”. As such, the sub-section targets the person in control of either of these two “environments”.
[22] Paragraph (a).
[23] Paragraph (b).
In some cases, this will be an entity who uses the labour of others to manage and control its workplace[24] or to do its work.[25] In other cases it will be a person who does these tasks itself and alone.
[24] Sub-section 22(2)(a).
[25] Sub-section 22(2)(b).
This is the principal distinction to which both ss22(1) and ss22(2) are directed. The inclusion in s22 of self-employed persons, in addition to employers, is not directed at whether the former happens to be an employee or an independent contractor of someone else. The section is directed at workplaces[26] or work[27] where the person in control either uses the labour of others or does the work itself, for example and typically, a sole-trader. These two categories of entity or person owe the duties described in s22 in favour of persons who fall within ss22(2)(a) or (b), being persons who are not employees, such as, for example, customers and other visitors.
[26] Paragraph (a).
[27] Paragraph (b).
That this is the focus of s22 makes practical sense given the statutory context in which s22 is to be found.[28]
[28] “The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole.” See generally Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ) and the cases there cited.
Section 22 falls within Part 3 of the Act which is headed “General provisions relating to occupational health, safety and welfare”. Part 3 consists of sections 19 to 25. Section 19 provides for duties of employers owed to their employees. These duties relate, inter alia, to a safe working environment, safe systems of work, the maintenance of plant and substances in a safe condition, provision of facilities adequate for the welfare of employees at the workplace and the provision of information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health. Section 20 imposes additional duties on “every employer” again with reference to employees. Section 21 provides for various duties to be observed by employees and owed with respect to their own health and safety and that of “any other person”. Section 23 provides for duties of occupiers of a workplace which duties are limited or confined, as would be expected, to those pertinent to the notion of occupation. Sections 23A, 24 and 24A impose duties on designers and owners of buildings, persons responsible for, inter alia, the design, manufacture, importation or supply of plant and owners of plant respectively. Section 25 imposes a general duty on all persons not being an employer, an employee or an occupier of a workplace.
It is to be observed that s22, in effect, fills a gap in this network of occupation health and safety obligations. By s22 certain persons are held responsible for the health and safety of any person (not being their employee) whilst that person is at a workplace under the first person’s management and control or whilst that person is in a situation where they could be adversely effected through an act or omission occurring in connection with the first person’s work. Without s22, the duties under Part 3, owed by the person or entity in control of these two “environments” (whether through the use of another’s labour or not) to non-employees would be quite limited.
This certainly would be the case as far as a person who does not use the labour of others is concerned. The only other provisions that might apply to such a person who does not employ others would be s23, duties of occupiers, and s25, duties applicable to all persons.[29] Sections 23 and 25 impose duties of a quite limited nature, nowhere near as comprehensive as the duties imposed on an employer with respect to its employees in s19 and s20, on the duties imposed on employees under s21 or those imposed on employers and self-employed persons with respect to any other person (not being an employee) under s22. Furthermore, there will be many circumstances where a self-employed person does not qualify as an occupier and s23 will not apply.
[29] Of course, such a person may, in appropriate circumstances, also qualify as a designer or owner of buildings, s23A, or a manufacturer etc., s24, or an owner of plant, s24A. However, there will be many persons who operate in a workplace, as sole-traders, who are none of these.
With this focus of s22 as outlined above in mind, I turn now to consider the respondent’s notice of contention which raises and relies on ss4(2) of the Act. Sub-section 4(2) provides as follows.
For the purposes of this Act, where a person (the contractor) is engaged to perform work for another person (the principal) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, will be taken to be employed by the principal but the principal’s duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor. (Emphasis in the original).
This provision will apply “where a person is engaged to perform work for another person in the course of a trade or business carried on by [that second person]”. In these circumstances, the first person is described as the “contractor” and the second person is described as the “principal”. These two terms are not defined elsewhere in the legislation. They merely serve as descriptors so as to simplify the drafting of the balance of ss4(2). It is not necessary to make a finding that a particular person is a contractor, either by application of the common law distinction between employee and independent contractor or on any other basis, in order to justify the application of ss4(2). All that needs to be satisfied is that the situation is one of a person (the contractor) having been engaged to perform work for another person (the principal) in the course of a trade or business carried on by the principal. On any analysis of the facts,[30] as found in the courts below, the respondent was engaged to perform work for Jean Bryant Fisheries Pty Ltd in the course of a trade or business carried on by Jean Bryant Fisheries Pty Ltd. It follows, according to the balance of ss4(2), that the respondent “will be taken to be employed” by Jean Bryant Fisheries Pty Ltd.
[30] And notwithstanding my reservation expressed below in fn 32.
In the event that ss4(2) were to apply in the context of the application of s22, it would follow, in my view, that the respondent having been “taken to be employed” by Jean Bryant Fisheries Pty Ltd, that is, deemed to be so employed[31] cannot also be characterised as a “self-employed person” for the purpose of s22.
[31] See the discussion in Pearce & Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) at [4.43]-[4.44] and the authorities there cited.
Sub-section 4(2) applies “for the purposes of this Act”. Whilst it contains an express qualification as to its ambit, this is limited to the principal’s duties under the Act in relation to the contractor. This qualification, by its terms, does not apply to prevent a contractor from falling outside the notion of “self-employed person” for the purposes of s22 on the basis that the contractor is taken to be employed by the principal.
Save for one qualification,[32] I, with respect, adopt the analysis of ss4(2) by the former Chief Justice in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd & Anor.[33] Gray J has set out in his judgment the relevant passages from the judgment of Doyle CJ in Complete Scaffold. In my view, it is clear that Doyle CJ, albeit reluctantly, accepted that ss4(2) applied generally throughout the Act,[34] but for the one express qualification contained within the sub-section itself.[35] Contrary to the submission put by the appellant and, with respect, the position adopted by Judge Hannon[36] there is nothing in the terms of ss4(2) itself, s19 or the Act as a whole to suggest that ss4(2) is limited in its application only to s19 of the Act or, indeed, that it is to have an application or operation more limited than that accepted by the Full Court in Complete Scaffold.
[32] Doyle CJ seemed to conclude, reluctantly, that whenever a contractor is engaged to do work “that advances or facilitates” the trade or business of the principal, that principal will be a deemed employer. The expression used in ss4(2) is “engaged to perform work … in the course of a trade or business…”. The words “advance” and “facilitate” are not used. I prefer to reserve my position on whether these terms would appropriately describe the ambit of the words used in the section or inappropriately broaden it. For example, at this stage and not having heard argument, I have no concluded view whether some of the examples given by his Honour, such as the accountant or the solicitor, would necessarily fall within ss4(2).
[33] [2001] SASC 199, Doyle CJ with whose reasons Williams and Martin JJ agreed.
[34] Subject to any qualifications to be found, express or implied in other sections of the Act.
[35] See in particular his Honour’s judgment at paragraphs [52] and [54].
[36] Markellos v Baker [2012] SAIRC 9 at [81]-[88].
Furthermore, the language of ss4(2) is expressly picked up in both s19 and s22. The opening words of ss19(1) are “an employer must, in respect of each employee employed or engaged by the employer, ensure…”. Ordinarily when describing duties to be owed by an employer in favour of its employees it would be sufficient to refer to “each employee” particularly, as the term “employee” is defined in s4 of the Act. However, the drafter has expressly adopted, in addition, the phrase “employed or engaged by the employer”. In my view, the use of the word “engaged” is a direct reference to its use in ss4(2), so as to make clear that other persons who “will be taken to be employed” pursuant to ss4(2) are embraced by s19 and notwithstanding the more restrictive definition of “employee”.
Similarly, the drafter has used the term “employed or engaged by the employer” in ss22(2). There, the phrase is used, again as a nod to ss4(2), so as to make it plain that the persons excluded from protection under s22 are not limited to employees, stricto jure, but include such employees together with persons taken to be employed for the purposes of the Act.
The drafter can be taken to have been alive to the operation of ss4(2) when drafting s19 and s22 but did not seek to qualify its application. To the contrary, the drafter affirmed its application. Had the drafter used only “employee employed by the employer” (in the case of s19) or “employee employed by the employer or the self-employed person” (in the case of s22) an argument would have been open that the use of the qualifier “employed by” showed an intention that ss4(2) was not to apply to these two sections.[37]
[37] I recognise that the word “engaged” has not been used where it might have been in s20. However, the implications, if any, of this for the proper construction of s20 do not arise on this appeal and can be left to another day. The absence of the word “engaged” in s20 does not cause me to depart from the analysis of s19 and s22 given in the text.
The appellant relied on s26 of the Act as demonstrating that it was not intended that ss4(2) should apply to the Act as a whole. I disagree. The opening words of s26 are as follows.
For the purposes of this Part, employee does not include –
(a)a self-employed contractor unless the work performed by the contractor is [of a prescribed class].
The word “employee” is defined in s4 in conventional terms. A “self-employed contractor” ordinarily would not satisfy that definition but might be deemed to be an employee, in appropriate circumstances, were ss4(2) to apply. The drafter of s26 needed to expressly create the exception in order to avoid the potential reach of ss4(2) to the provisions of Part 4 of the Act.
The analysis of ss4(2) and its application to s22 just provided is consistent with and supports the proper focus of s22 as identified earlier in these reasons.
The common law distinction between an employee and an independent contractor and the contractual terms or basis of the respondent’s engagement by Jean Bryant Fisheries Pty Ltd, relevant to this common law distinction, do not assist in answering the statutory question whether or not, at the relevant time, the respondent was a “self-employed person”. The facts that he had been engaged to perform work for Jean Bryant Fisheries Pty Ltd and that the work was in the course of a trade or business carried on by that entity (that is, the nature of the respondent’s work) are sufficient to engage ss4(2) and to take the respondent outside s22.
I would dismiss the appeal.