Bryden Homes Pty Ltd v TasBuild Limited - [2018] TASSC 27

[2018] TASSC 27

COURT: SUPREME COURT OF TASMANIA

CITATION: Bryden Homes Pty Ltd v TasBuild Limited [2018] TASSC 27

PARTIES:  BRYDEN HOMES PTY LTD
  v
  TASBUILD LIMITED (ACN 082 066 939)

FILE NO:  1198/2016
DELIVERED ON:  11 May 2018
DELIVERED AT:  Hobart
HEARING DATES:  21 September 2016
JUDGMENT OF:  Wood J
CATCHWORDS:

Statutes – Interpretation – Acts of Parliament – Operation and effect of Acts – Interaction of Acts – Impact of s 7(1) of the Independent Contractors Act2006 (Cth) on State legislation – Whether s 7(1) applies to a worker who potentially may be an independent contractor – Whether onus on prosecution to exclude the operation of s 7(1) beyond reasonable doubt – Consideration of text and purpose – Section 7(1) enlivened by a positive finding of fact that worker is an independent contractor.

Independent Contractors Act 2006 (Cth), ss 3 and 7.
Construction Industry (Long Services) Act 1997 (Tas), ss 6 and 8.
Acts Interpretation Act1931 (Tas), s 8A.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27, applied.
Aust Dig Statutes [1129]

Industrial Law – Tasmania – Long Service Leave – Other matters – Belief that employees were independent contractors relied upon as honest and reasonable mistake of fact – Advice sought about legal status of workers – All material facts known – Mistake of law – In the circumstances the belief was unreasonable and evidentiary onus not discharged.

He Kaw Teh v The Queen (1985) 157 CLR 52; Ostrowski v Palmer [2004] HCA 30, 218 CLR 493; CMT v The Queen [2008] HCA 25, 236 CLR 440, applied.
Aust Dig Industrial Law [3403]

Industrial Law – Tasmania – Long Service Leave – Other matters – Prosecution for failure to apply to register employees – Contention that complaint made outside statutory time limit – "Continuing offences" - Obligation continues until it is observed and complaint not out of time.

Construction Industry (Long Services) Act 1997 (Tas), ss 6, 8 and 9B.
Justices Act 1959 (Tas), ss 26 and 31.
R v Barelli's Bakeries [1965] VR 615; Cox v Ketchell [1972] Tas R 33, applied.
Aust Dig Industrial Law [3403]

Magistrates – Hearing – Procedural fairness and natural justice – Finding of guilt based on reasoning not relied on by prosecution – Matters always issues for consideration – No duty to foreshadow contemplated reasoning.

F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295; Chaplin v Lane (No 2) [2015] TASSC 21, followed.
Aust Dig Magistrates [1122]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Four breaches of the Construction Industry (Long Service) Act 1997 – Limited matters raised in mitigation – First offence – Global fine of $5000 – Sentence not manifestly excessive.

Construction Industry (Long Services) Act 1997 (Tas), ss 6 and 8.
Aust…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] TASSC 27
Decision Date: 11 May 2018

CaseChat Overview and Summary

In Bryden Homes Pty Ltd v TasBuild Limited, the respondent, TasBuild Limited, prosecuted Bryden Homes Pty Ltd for contravening the Construction Industry (Long Services) Act 1997 (Tas). The case raised issues about the application of federal and state legislation, the interpretation of statutes, and procedural fairness in the context of a prosecution by a state regulator. The primary legal issue was whether section 7(1) of the Independent Contractors Act 2006 (Cth) applied to workers who could potentially be classified as independent contractors, and if so, whether the onus was on the prosecution to prove that section 7(1) did not apply beyond reasonable doubt. Additionally, the case considered the validity of the prosecution's argument that the complaint was made outside the statutory time limit, and whether the belief that employees were independent contractors could be considered an honest and reasonable mistake of fact.

The court examined the text and purpose of the relevant statutes and found that section 7(1) of the IC Act was activated by a positive finding that a worker is an independent contractor. This section was intended to limit the scope of the Construction Industry (Long Services) Act 1997 (Tas) to employees and not independent contractors. The court held that the onus was on the prosecution to prove that the workers in question were employees under the CILS Act, but this did not mean that the prosecution had to disprove the application of the IC Act beyond reasonable doubt. The court also determined that the belief that employees were independent contractors was unreasonable given that all material facts were known and legal advice was sought. This belief amounted to a mistake of law rather than fact, and therefore the evidentiary onus was not discharged. Lastly, the court held that the prosecution's complaint was not out of time because the obligation to comply with the CILS Act was ongoing until it was fulfilled.

The court found that the magistrate did not err in finding Bryden Homes Pty Ltd guilty of the offences, despite not relying on the reasoning that the court ultimately adopted. The court also dismissed the motion to review the sentencing orders, finding that the global fine of $5000 for four breaches was not manifestly excessive. The court's final orders upheld the conviction and the sentence imposed by the magistrate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The submissions raise a question of statutory interpretation, requiring consideration of the effect of the CILS Act and the meaning of s 7(1) of the IC Act. First, it is useful to consider the ambit of the CILS Act, and the provisions in question. Section 6 provides in part:"6 Registration of employees(1) An employer engaged in any construction industry covered by the new scheme must apply to the company for registration of each employee of the employer.Penalty: Fine not exceeding 100 penalty units.(2) The company is to register a person if, in its opinion, the person is eligible for registration. ...". Section 8(1) is in terms that:"8 Records, returns and information(1) An employer or a person liable to pay a levy under section 7 is to — (a) supply the company with any records or information the company requires in relation to the new scheme; and(b) make any returns the company requires in relation to the new scheme." The definition of "employee" in the CILS Act is very wide and, as mentioned earlier, is simply:"employee means a person engaged in the construction industry".The definition of "employer" is:"employer includes a person who is self-employed". By cl 5 of the Trust Deed, the Rules are to be construed as part of the Deed. Trustees may make rules regarding the administration of the "new scheme". The Rules define "employee" as:"… a person who is, or has been, employed in Relevant Employment and includes any person engaged whether:(i)under a contract of service;(ii)under a contract that is wholly or principally for the labour of the person;(iii)under a contract, whether or not a contract of employment, by any labour hire agency or group training scheme." "Employer" is defined in the Rules as "in relation to any Relevant Employment in which an employee is or has been engaged, means his or her employer in that employment". Again, there is a nexus with an employee, drawing in the broad meaning of employee, which ignores the distinction with independent contractors. "Relevant Employment" is also defined in the Rules and means:"… employment on a permanent or casual basis of an employee by an Employer for the purposes of the carrying out by the employer of any Work in the Construction Industry on the site of the Work or, if he is not employed on the site of the Work, is employed by that employer in making, preparing, storing, or transporting goods or material for use in that Work, but does not include:(i)employment of an employee by an employer who is not engaged in the Construction Industry in the maintenance of plant and equipment notwithstanding the nature of the work done by the person is similar to Work in the Construction Industry;(ii)a period of employment of less than one full day's duration." "'Work' means work carried out in the Construction Industry." The effect of the CILS Act and the Rules is that a person engaged in the construction industry under a contract that is wholly or principally for the labour of the person is an employee.