Baker v Markellos

This matter concerned an appeal before the Full Court of the Supreme Court of South Australia, comprising Gray, Sulan, and Nicholson JJ. The dispute arose from a prosecution under the *Occupational Health and Safety Act 1986* (SA), where the appellant, Baker, was charged with an offence. The central question was whether Baker, who was found to be an independent contractor, could be held liable under the Act.

The court was required to determine the proper interpretation and application of section 4(2) of the *Occupational Health and Safety Act 1986* (SA) in circumstances where a principal exercises control over work being undertaken in the course of the principal's business. Specifically, the court considered whether an independent contractor, in such a situation, could be deemed an employee for the purposes of the Act, and consequently, whether they could be liable under section 22(2) while remaining prosecutable under section 21(1a).

The court reasoned that section 4(2) of the Act provided a complete answer to the appeal. It held that where a principal controls work being undertaken in the course of their business, that principal is considered the employer for the purposes of section 19 of the Act. Furthermore, individuals who carry out or assist in that work, irrespective of whether they are employees or independent contractors, are deemed to be employees under the Act, particularly Part 3. This interpretation was found to be consistent with the legislative scheme and avoided the anomaly of both the principal and the independent contractor being deemed employers under section 19, which could create conflicting responsibilities regarding the provision of a safe system of work.

The appeal was dismissed. The court concluded that if the defendant was self-employed, they were deemed to be an employee for the purposes of the Act and Part 3. Consequently, the defendant could not be liable under section 22(2) but remained liable to be prosecuted under section 21(1a).