Marsden v Unimin Australia Ltd
[2004] WASCA 143
•30 JUNE 2004
MARSDEN -v- UNIMIN AUSTRALIA LTD [2004] WASCA 143
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 143 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:51/2003 | 18 NOVEMBER 2003 | |
| Coram: | MILLER J MCKECHNIE J WALLWORK AJ | 30/06/04 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| A | |||
| PDF Version |
| Parties: | ALAN DAVID MARSDEN UNIMIN AUSTRALIA LTD JOHN IVOR PRICE RESOLUTE RESOURCES LTD |
Catchwords: | Workers compensation Labour hire contract Whether principal deemed employer Whether work directly part or process in the trade or business of the employer |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 175, s 175(3) |
Case References: | Commercial Union v Ferrcom (1991) 2 NSWLR 389 Frauenfelder v Reid (1963) 109 CLR 42 Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91 Jones v Dunkel (1959) 101 CLR 298 Jones v Wesfarmers Ltd [2003] WASCA 225 WMC Resources Ltd v Koljibabic (2002) 27 WAR 91 Warren v Coombes (1979) 142 CLR 531 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MARSDEN -v- UNIMIN AUSTRALIA LTD [2004] WASCA 143 CORAM : MILLER J
- MCKECHNIE J
WALLWORK AJ
- Appellant
AND
UNIMIN AUSTRALIA LTD
Respondent
- Appellant
AND
RESOLUTE RESOURCES LTD
Respondent
(Page 2)
ON APPEAL FROM:
For File No: FUL 51 of 2003
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
Citation Number : [2003] WADC 61
For File No: FUL 171 of 2002
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER GREAVES
Citation Number : [2002] WADC 235
Catchwords:
Workers compensation - Labour hire contract - Whether principal deemed employer - Whether work directly part or process in the trade or business of the employer
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 175, s 175(3)
Result:
Appeals dismissed
(Page 3)
Category: A
Representation:
FUL 51 of 2003
Counsel:
Appellant : Mr J R Criddle
Respondent : Mr H M O'Sullivan
Solicitors:
Appellant : Bradford & Co
Respondent : Srdarov Richards Burton
FUL 171 of 2002
Counsel:
Appellant : Mr J R Criddle
Respondent : Mr D R Clyne & Ms S T Turner
Solicitors:
Appellant : Bradford & Co
Respondent : Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
Commercial Union v Ferrcom (1991) 2 NSWLR 389
Frauenfelder v Reid (1963) 109 CLR 42
Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91
Jones v Dunkel (1959) 101 CLR 298
Jones v Wesfarmers Ltd [2003] WASCA 225
WMC Resources Ltd v Koljibabic (2002) 27 WAR 91
Case(s) also cited:
Warren v Coombes (1979) 142 CLR 531
(Page 4)
- MILLER & MCKECHNIE JJ:
Introduction
1 The facts of each case are set out by Wallwork AJ.
2 Although some distinct issues are also raised, each of these cases turn on the proper construction s 175 of the Workers' Compensation and Rehabilitation Act 1981. This in turn requires consideration of the recent decision of this Court in Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91, followed in Jones v Wesfarmers Ltd [2003] WASCA 225. The question for resolution in each case is whether, when a worker of a labour hire company works for and under the supervision of another company, the second company is deemed to be the employer under s 175.
Marsden v Unimin Australia Pty Ltd – FUL 51/03
3 The appellant was employed by a labour hire company known as Integrated Workforce. In findings which are not challenged the learned trial Judge found:
"4 It appears from the evidence that the plaintiff was employed by Integrated Workforce at all material times. Obviously, however, Integrated Workforce is not a party to these proceedings.
5 As the plaintiff explained he would follow a process of telephoning Integrated Workforce from time to time and enquiring whether they had any work available for him. In December 1998 having received a favourable response and having been given details the plaintiff reported to the business premises of the defendant in Welshpool. He was introduced to the health and safety officer and then the shift supervisor. He was shown around the site. Initially the plaintiff was to attend for one day only but he worked up until Christmas and then after Christmas he was asked to return. He was asked to keep attending on a daily basis until further notice.
6 The defendant was then known as 'Commercial Minerals' but later known as 'Unimin Australia Ltd'.
7 Concerning the nature of the work the plaintiff said that he did:
(Page 5)
- 'Everything from occasionally driving the forklift when there was no-one else available to drive it, depending on which shift I was on, to sweeping up, to loading pallets, to bagging of chemicals.
Who gave you instructions to carry out that work?---The shift supervisor.
Did you ever see anybody from Integrated at the premises while you were there up until the date of the accident?---Not to the best of my recollection …
Did you receive any instructions from anyone at Integrated on how to do your work at the premises?---No' T22/23
- 8 In early 1999 the plaintiff continued to work at the premises run by the defendant. He worked five days a week but his shifts varied. Apparently the business ran 24 hours a day. The shifts were from 7.00 am to 3.00 pm, 3.00 pm to 11.00 pm and 11.00 pm to 7.00 am.
9 In the middle of February 1999 the plaintiff was given the job of operating the mobile mixing plant. This machine is depicted in a computer generated photograph, Exhibit A1 and A2. It mixes powdered chemicals."
4 On 6 March 1999, while operating the mixing machine, the appellant reached into the chute to feel for blockages and was severely injured by rotating mixing blades. The learned trial Judge held that Unimin (formerly known as Commercial Minerals) was guilty of negligence.
5 The learned trial Judge nevertheless dismissed the appellant's claim because, applying Hewitt v Benale, he held that s 175 of the Act deemed the respondent to be an employer of the worker so that the provisions of Div 2 Pt IV of the Act applied.
6 Although the appellant challenges a lack of certain findings on the part of the Judge, it is unnecessary to deal with these grounds because the ultimate conclusion of the trial Judge involved the construction of the Workers' Compensation and Rehabilitation Act s 175.
(Page 6)
7 Section 175 is in Div 2 Pt X entitled "Insurance by principals, contractors, and sub-contractors and provides:
"175. Principal contractor and sub-contractor deemed employers
(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed…"
"'employer' … and, where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person"
9 The appellant put some store on this definition although it seems to us that it is a provision designed to ensure that a worker will be covered by workers compensation in circumstances where, at common law, there may be a dispute as to who is the actual employer. In the present case it requires the labour hire company to maintain workers compensation in respect of the worker.
10 It is not necessary to set out the whole definition of "worker" but for relevant purposes a "worker" "means any person who has entered into or works under a contract of service or apprenticeship with an employer … the term 'worker', … also includes … (b) any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services…".
(Page 7)
11 Under Pt IV entitled "Civil proceedings in addition to or independent of this Act" s 86 provides:
"Saving – independent liability
Except as expressly provided by this Act, nothing in this Act affects any liability that exists independently of this Act".
12 Division 2 applies constraints on awards of common law damages. Those constraints relevantly in s 93B apply "…to the awarding of damages against a worker's employer independently of this Act…"
13 The issue is whether the company for whom the worker is actively engaged is a deemed employer.
The decision in Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91
14 Hewitt v Benale was heard and decided at the same time as WMC Resources Ltd v Koljibabic (2002) 27 WAR 91 in order to resolve a dispute in the District Court as to the scope of s 175 of the Workers' Compensation and Rehabilitation Act. Each case proceeded on a set of agreed facts. We mention this although it does not, in the circumstances, appear to us to be of practical significance because the essential findings as to the basis of employment in the present case are not challenged.
15 Counsel for the appellant attempted to distinguish the decision in Hewitt v Benale. Although he asserted he was not challenging the actual decision itself, he did challenge the correctness of the observations of EM Heenan J at [109] to [111]. We turn first then to an analysis of the decision. In respect of the definition of "employer" Scott J held at [25]:
"Whilst it is correct to say that the definition of 'employer' in that section contains no reference to the 'deemed employer' in s 175, the definition is, nonetheless, an inclusive definition. The definition is not exhaustive and does not necessarily exclude a construction which would enable a deemed employer to come within its terms."
16 At [37] Scott J said:
"… In my view, it is clear from those provisions that whatever the meaning of s 175(1) at the time of the passing of the Workers' Compensation Act the deemed employer was intended to come within the limitation of damages provisions contained
(Page 8)
- in Div 2 Part IV for the purposes of the relevant provisions of s 98B."
17 Scott J identified the issue for resolution at [40] as:
"… whether the deeming provision in s 175(1) deems the principal to be the employer only for the purposes of payment of workers' compensation or whether the deeming provision applies for other purposes under the Act, namely the institution of civil action for common law damages against the deemed employer."
18 Scott J held at [41] and [42]:
"41. … There is no reason why the actual employer of an injured worker should have the advantage of a statutory limitation on liability whilst a deemed employer, occupying that position because of the fiction created in s 175(1) of the Workers' Compensation Act, would not.
42. It would also be anomalous for an employee to be able to obtain an unlimited award of damages against a deemed employer, but be subject to the limitation provisions if action was taken against the actual employer. In workplaces where an employee was employed by a contractor or subcontractor it would be in the employee's best interests to sue the principal and thereby avoid the statutory limitations."
19 Scott J concluded at [48]:
"In my view, it is unnecessary to determine whether the deemed employer under s 175(1) of the Workers' Compensation Act is a deemed employer for all purposes of the Act. It is sufficient to conclude that a deemed employer under s 175 is an employer for the purposes of Div 2 Part IV of the Workers' Compensation Act so that the provisions which limit the liability of an employer under that part of the Act would equally apply to the deemed employer."
(Page 9)
20 Hasluck J, after noting that the term "employer" is defined broadly, remarked at [58]:
"Unlike workers' compensation legislation in some other jurisdictions, which requires insurance against all forms of an employer's liability for personal injury to a worker, the Act does not require an employer to insure against liability at common law: see Moltoni Corporation Pty Ltd v QBE Insurance Ltd(2001) 185 ALR 213 at par 25."
21 At [60] Hasluck J said:
"The requirement in s 160 that employers be insured against liability to pay compensation is clearly a central feature of the legislation, but this is not included in the purposes listed in s 3 of the Act. This suggests to me that s 3 is intended to reflect the general policy of the Act, but the manner in which the Act makes provision for the compensation of workers who suffer a disability is to be determined by a close reading of the various checks and balances comprising the scheme of the Act. James v Cowan (1930) 43 CLR 386 at 410."
22 Hasluck J noted at [63]:
"…that the crucial question in the present case was whether the proceedings commenced by the respondent against WMC were to be characterised as proceedings against the worker's employer. The respondent's actual employer was Ralph M Lee but he was performing work under the control and upon the premises of WMC."
23 At [75] Hasluck J concluded that upon its proper interpretation, the deeming provision reflected in s 175(1) is applicable for all purposes of the Act. This means that Div 2 Pt IV and s 93D(4) in particular, applied to the respondent's claim. He supported this conclusion by reasoning at [76]:
"I consider that the view I have just expressed gives effect to the purpose of the Act. It is quite clear from a consideration of the Act as a whole that the legislation is not designed to provide compensation to an injured worker without any limitation. It emerges from the scheme of the Act that a worker is only entitled to recover compensation in respect of injuries incurred in the course of his employment or in similar circumstances.
(Page 10)
- There are various other checks and balances which reveal that the amounts recoverable as compensation will have to conform to certain prescribed limits. The Act guards against double recovery of both compensation and damages. It is consistent with the scheme of the Act that there should be certain constraints upon the recovery of damages at common law, although, no doubt, there will be adjustments to what is thought to be the appropriate balance from time to time."
24 EM Heenan J referred directly to labour hire contracts at [106]:
"It has, for a very long time, been a feature of the labour market, particularly the industrial labour market, for workers to be let on hire by their main employer to another employer for special or limited purposes sometimes, but not always, for short periods…"
- and noted at [109] and [110]:
"[109] It is against this background that the worker's compensation legislation was originally framed at a time when the distinction between employee and independent contractor was both sharp and fundamental…
[110] This definition continues the approach of the common law to the employment of workers who are lent or let on hire by their ordinary employers to another. As in the common law, the ordinary primary employer continues as the employer liable under the Act."
"However, s 175 has the effect of making the person who takes the worker on loan or hire an employer and so liable under the Act for compensation concurrently with the principal employer. This result is achieved by deeming the person who takes the employee on loan or hire to be an employer 'for the purposes of the Act'. This 'deemed employment' is additional to, and not in substitution for or exclusive of, the contractual employment by the original employer…"
(Page 11)
26 EM Heenan J concluded:
[122] Examination has already been undertaken of the role of ss 92 and 93, both before and after 1993, in establishing a regime in which a worker who succeeds in a claim for damages at common law will be obliged to give credit for worker's compensation benefits received under the Act in order to avoid a situation of partial double compensation. This is achieved, in the case of an action against the worker's employer, by subsections 92(b), (c) and (e) and, where the worker's claim is against a stranger, by subsections 93(1)(b) and (4) and (5). As a deemed employer, under s 175, will be concurrently liable with the common law employer to pay worker's compensation benefits under the Act, there will be many instances in which the worker may bring an action against that deemed employer and succeed in recovering a judgment for common law damages. In every such situation, the principle enshrined in s 92 of avoiding double recovery of both damages and compensation, will apply. Section 92 will require the successful plaintiff worker to give credit for worker's compensation benefits which may previously have been paid by the deemed employer defendant. That is expressly what ss 175(5) achieves. I can see no escape from this conclusion, consistent with the manifest policy of the Act, because of the object of avoiding double recovery. In the event of a successful common law action, the avoidance of double recovery cannot be supposed to depend on whether the defendant is the common law employer or a deemed employer.
[123] The conclusion means that the extended definition of employer within s 175 of the Act applies, and was always intended to apply, to s 92. The question then becomes, whether there is anything to differentiate Div 2 of Pt IV from all other provisions in the Act including Div 1. I can see no basis for making any such distinction. Indeed, I am of the view that Div 2 is an enlargement of the general subject matter addressed by Div 1 of Pt IV, namely, the consequences for a worker, who is entitled to worker's compensation benefits under the legislation, also being eligible, in certain circumstances, to damages at common law. Once that continuity of purpose in the
(Page 12)
- whole of Pt IV is recognized, the conclusion naturally follows that ss 93B, 93C and 93E use the term 'employer' in a manner which includes the extended definition given to it by s 175."
The decision in Jones v Wesfarmers Ltd [2003] WASCA 225
27 In Jones v Wesfarmers Ltd [2003] WASCA 225 the factual issue was whether a worker employed by a company engaged to maintain and repair a trailer was injured in respect of premises on which the principal has undertaken to execute the work or which are otherwise under his control or management.
28 It was common ground in Jones v Wesfarmers that Hewitt v Benale correctly stated the law and the decision necessarily accepts the correctness of Hewitt v Benale.
Resolution of this appeal
29 In our opinion we are bound by the unanimous decision in Hewitt v Benale, confirmed in Jones v Wesfarmers. In our opinion, the conclusions of EM Heenan J at [109] - [111] are correct.
30 Although the decision in Hewitt v Benale proceeded on an agreed statement of facts, the ratio decidendi of the case is clearly established. Both the definition of "employer" in s 5 and the provisions of s 175 of the Act were no doubt intended to be beneficial and expansive so that a worker would be able to identify, with ease, an employer with an obligation to pay workers' compensation. As the Workers' Compensation and Rehabilitation Act has developed and has been interpreted there is also a burden on the worker from these sections, the burden being the requirements of Pt IV Div 2.
31 Counsel for the appellant, in an able and ingenious argument, sought to distinguish labour hire contracts in a number of ways. It was argued that the contract was for the provision of labour to perform work under the direction and control of the company hiring the labour and that there was no ability to supervise or direct the work retained to the original employer. However, under the operational procedures between Integrated Workforce and Unimin; a representative of Integrated Workforce was required to make an assessment of the employee's performance on the day of commencement. Integrated Workforce was required to monitor the performance of the employee at regular intervals. It was the obligation of
(Page 13)
- Integrated Workforce, amongst other things, to provide adequate supervision for any employees it assigned to Unimin.
32 Counsel for the appellant argued that a benefit for a company like Unimin in entering into labour hire contracts is the fact that the original employer pays the workers' compensation insurance. He submitted, that although there is no evidence on the point, companies contracting with labour hire firms to supply labour do not pay workers' compensation premiums in respect of that labour. He pointed to s 160 of the Act and the liability of an employer to keep current a policy of insurance with penalties for an employer who fails to do so.
33 Accepting, as we do, the correctness of the decision in Hewitt v Benale, the issue in this appeal is simply whether, in the words of s 175, Unimin contracted with Integrated Workforce for the execution of any work by or under Unimin.
34 The trial Judge concluded that Hewitt v Benale might be said to provide a complete answer for the defendant to the plaintiff's claim.
35 The appellant's case pleaded in the further amended statement of claim of 18 November 2002 was:
"4. At all material times:
(a) the Plaintiff was employed by Integrated;
(b) through a contract or agreement between the Defendant and Integrated, Integrated hired the services of the Plaintiff to the Defendant in order that the Plaintiff could perform duties as a casual general hand on the premises
(c) The Plaintiff was subject to the supervision, direction and control of the Defendant."
"2(b) the Defendant admits paragraph 4 of the Statement of Claim and further avers that the contract between the Defendant and Integrated Workforce was for the execution of work by or under Integrated Workforce in that the Plaintiff was directed by his employer to work
(Page 14)
- under the supervision, direction and control of the Defendant."
37 This plea was particularised in the respondent's further and better particulars of 27 November 2002:
"Request
(i) Specify the term or terms of the contract between the Defendant and Integrated Workforce to the effect that the contract was for the execution of works by or under Integrated Workforce to the effect that the contract was for the execution of works by or under Integrated Workforce.
Answer
(i) The Defendant repeats paragraph 4 of the Statement of Claim and paragraph 2(b) of the Defence. It was a term of the contract that the Plaintiff would (a) work at the Defendant's premises, (b) under the Defendant's supervision, and (c) as a general hand and forklift driver.
Request
(ii) Specify whether such term or terms were in writing or verbally or partly in writing and partly verbal.
Answer
(ii) (a) and (c) orally, (b) in writing.
Request
To the extent that any such term was in writing or partly in writing specify the document containing such term or terms.
Answer
(iii) The Service proposal dated the 29th July 1995 which was incorporated into each contract made orally.
Request
(iv) If verbal state:
(Page 15)
- (i) the person or persons on behalf of the Defendant and integrated Workforce who agreed such term or terms;
(ii) the date or dates on which such term or terms were agreed.
(iv) (a) Carol Beard and Craig Hudson. (b) in or about December 1998."
38 Ms Beard was called on behalf of Unimin in the trial. She was the Operations Co-ordinator for the respondent. She gave evidence that a number of employees were hired through Integrated Workforce and employed by that company which paid the tax, superannuation and workers' compensation insurance.
39 Ms Beard gave evidence:
"Will you tell his Honour what the procedure was when you needed workers? What did you do?---I would ring up Integrated Workforce and say to them - we have created a profile in the past and I would ask them to find me someone that fitted into that profile.
When you say you have created a profile in the past, what do you mean by that?---There was a meeting between myself and I think it was Craig Hudson, at the time.
Who is Craig Hudson?---Integrated and we would define what sort of person I would require on site, forklift ticket, etcetera and just outlining what type of person I would need.
So a person to do a particular type of job?---Mm'hm, that's right. I would then ring up and request that I needed an employee to come to site or a person to come to site to fulfil some duties that were vacant at the time.
I don't think it's contentious at all but that staff that were hired through Integrated were employed by Integrated?---That's right.
Is it the case that you were invoiced - that is to say Commercial Minerals were invoiced on a regular basis by Integrated?---That's right.
(Page 16)
- In respect of the workers that they provided you?---That's right.
To do the work at Welshpool?---Correct.
And Integrated was responsible for that person's tax?---Correct.
Superannuation?---Yes.
And workers compensation insurance?---Yes.
Even though integrated was the employer, who was responsible for the management, supervision and control of the relevant individual that was sent to you?---Commercial Minerals at that time."
40 The Service Proposal between Integrated Workforce and Commercial Minerals Ltd under the heading "Commitment to Service" provided:
"COMMITMENT TO SERVICE
Integrated Workforce (WA) understands that we will have a commitment to the following responsibilities:
• To provide high quality selectively recruited personnel to work in a suitably supervised environment as designated by you the client.
• To monitor the performance of any employees assigned to your company:
a) upon commencement of assignment
b) at regular intervals during a longer term assignment
c) upon completion of assignment.
• To replace any employee Free of Charge who is deemed unsatisfactory by you.
• To ensure any particular site requirements, such as safety equipment and clothing requirements are met.
(Page 17)
- • To establish a pool of employees who are familiar with your individual needs and as such can be reassigned to you upon request where possible.
• Integrated Workforce (WA) personnel are fully covered by the following policies:
• Workers' Compensation
• Public Liability ($10 million)
• Motor Vehicle
• Administration costs for Integrated Workforce (WA) personnel, are fully inclusive of the following:
• Superannuation
• Group Certificates
• Payroll Tax
• To be available 24 hours per day 365 days per year for your convenience.
• All Integrated Workforce (WA) invoices are 100% tax deductable."
41 The arrangement described in the evidence was a contract for the execution of work under a contract and falls within s 175 of the Act. The execution of the work was under the contractor. Integrated Workforce contracted with the respondent to execute work by its employees at the direction of the respondent. The appellant was employed by Integrated to do that work.
42 Although the appellant took day-to-day directions from Unimin he was carrying out the work on behalf of Integrated Workforce, his employer. The contract with Unimin was for the supply of labour. The work carried out under that contract was one and the same as the work carried out by the appellant under the contractor even though it would also be correct to describe the work as being carried out under the principal.
43 In our opinion, the trial Judge was correct and in consequence the appeal should be dismissed.
(Page 18)
Price v Resolute Resources Ltd – FUL 171/02
44 We do not repeat the legal principles which are common to both matters.
45 The amended statement of claim dated 23 June 2000 pleaded:
"4. At all material times:
(i) The Plaintiff was employed by Drake Personal Limited ("Drake") as a maintenance supervisor.
(ii) Drake hired the services of the Plaintiff to the Defendant in order that the Plaintiff could perform work for the Defendant at the mine.
(iii) The Plaintiff worked under the control and at the direction of the Defendant."
"…So you got a job with Drake?---Yes.
How does that work exactly?---Well, when you get the job they just straightaway – your [sic] you're straight out to the mine - just fly you straight out and you start immediately and that's the way it works.
So who pays you?---Drake paid me…"
47 When the appellant was a leading hand his work, on a daily basis, was determined by the maintenance supervisor. He had to take orders from Resolute Resources personnel:
"…We were told that they were the boss - they owned the place and we had to do what was expected of us by those people.
…
The mine site. Who was controlling it?---Well, Resolute were. I mean, Drake hired us to work for Resolute."
(Page 19)
48 This evidence is consistent with the opening address by counsel for the appellant:
"…During 1993 he was employed by Drake Personnel. Drake Personnel is the type of employer which lets or hires the services of its employees to others. One of those employers is the defendant in this case, Resolute Resources Limited. In December 1993 in the course of his employment with Drake, Mr Price was sent to perform maintenance duties at the Marymia mine which is outside Meekatharra, and that is a mine site which is controlled and operated by Resolute, the defendant.
It was managed by them and the work systems were established and controlled by the defendant…"
49 On the state of the evidence it was open for the learned Commissioner to conclude that, within the meaning of the Workers' Compensation and Rehabilitation Act s 175(1), Resolute was the principal, Drake the contractor and the appellant the worker. The appellant was employed by Drake for the execution of work by or under the contractor. The work undertaken by the appellant was coterminous with the execution of the work by Drake. The work was both under Resolute and under Drake.
Workers' Compensation and Rehabilitation Act, s 175(3)
50 A further question arises as to the application of s 175(3) of the Act to the appellant. That provision is as follows:
"175(3) The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal."
51 The appellant pleaded in the amended statement of claim:
"5. On 2 December 1993 and at the mine:
(i) the Plaintiff was required by the Defendant through its servant and supervisor one Geoffrey Berry to assist a fellow worker to remove an air-conditioning unit weighing approximately 50 kilograms from its setting in a wall.
(Page 20)
- (ii) whilst the Plaintiff was attempting to remove the said unit from the wall, it moved suddenly towards him causing the Plaintiff to bear the vast bulk of its weight.
(iii) excessive strain was thereby [p]laced on the Plaintiff's neck and left shoulder thereby causing him to suffer pain and injury ('the accident')."
52 This was confirmed by the appellant's evidence that he was instructed on 2 December 1993:
"…to go down to the camp and help Russel[l] Brenchley, the electrical fitter, remove an aircon from the wall in the wet mess. It had stopped working and it was urgent and we had to get it out so … because it kept the beer cold I suppose."
53 It was in the course of that work that the appellant was injured. Mr Brenchley, who was also employed by Drake, was an electrician whose job was to investigate the wet mess air-conditioner in the canteen section as a number one priority. The reason was:
"…an understood reason. We had had problems with the fridge before. The airconditioner basically supported the fridge in keeping the room cold and if that wasn't cold, all the refreshments that we had on site, 100 miners coming from a 45, 50 degree day, pretty displeased about the fact that they got to drink warm beer. The other help for that would be that the ice machines were old and they didn't work either…"
54 The learned Commissioner dealt with this evidence at [43]:
"Counsel for the plaintiff further submitted the defendant failed to establish the removal of the airconditioner was directly a part or process in the trade or business of the defendant. Once again, the facts pleaded in par 5 of the amended statement of claim and the evidence establish these facts and no other. Counsel for the defendant submitted the removal of the airconditioner was clearly part of the defendant's business of operating the mine site. On the evidence, no other conclusion is open."
(Page 21)
55 In Frauenfelder v Reid (1963) 109 CLR 42 Windeyer J said at 50:
"…it must, I think, be accepted that the expression 'work undertaken by the principal' is not limited to work that the principal has contracted to do for someone else, but covers also any work the doing of which is part and parcel of the business undertaking of the principal. Whether or not some particular work falls within the enactment then becomes ultimately a question of fact."
56 It being a question of fact, we consider that the learned Commissioner was correct in his finding. As part of his contract of employment with Drake, the appellant was required to follow the directions of his supervisor. That supervisor directed him to the air-conditioning unit. The maintenance of the accommodation village is directly a part of the business of the operation of Marymia mine because without it there would be no labour. The provisions of the Workers' Compensation and Rehabilitation Act s 175(3) have no application. We have already set out our reasons why the Workers' Compensation and Rehabilitation Act s 175(1) applies. The consequence must be that this appeal should also be dismissed.
57 WALLWORK AJ: The significant question for decision in these two appeals is whether in a situation where there is a worker hired by one company to another, the second company is deemed to be the employer of the worker concerned by virtue of s 175(1) of the Workers' Compensation and Rehabilitation Act 1981.
58 Section 175(1) is designed to cover the situation where a principal engages a contractor "for the execution of any work by or under the contractor". It is also subject to s 175(3) in that for the principal to be deemed an employer pursuant to the section, the relevant work at the time disability occurs must be "directly a part or process in the trade or business of the principal".
First Appeal – Marsden v Unimin Australia Limited
Facts
59 The appellant was employed at all material times by a labour hire company known as Integrated Workforce. The evidence at the trial was that he would telephone Integrated Workforce from time to time and enquire whether they had any work available for him. In December 1998, having received a favourable response, he reported to the business
(Page 22)
- premises of the respondent in Welshpool. He was introduced to the Health and Safety Officer and then the Shift Supervisor. He was shown around the site. Initially he was to attend work for one day only. However, he worked until Christmas. After that he was asked to return and to keep attending on a daily basis until further notice.
60 The appellant said in evidence that he worked at everything from occasionally driving a forklift, when there was no one else available, to sweeping up, and loading pellets for the bagging of chemicals. His work instructions were given to him by the shift supervisor. He said that to the best of recollection he had never seen anybody from Integrated at the premises of the respondent whilst he was there, until the date of the accident.
61 When asked did he receive any instructions from anyone at Integrated on how to do his work at the premises of the respondent, he answered "No". He worked five days a week but his shifts varied. The respondent's business ran for 24 hours a day. The shifts were from 7.00 am to 3.00 pm, 3.00 pm to 11.00 pm and 11.00 pm to 7.00 am.
62 In February 1999 the appellant was given the job of operating the mobile mixing plant. That plant mixed powdered chemicals. Because he had never used a machine like the mobile mixing plant, the appellant was instructed in its use by the shift supervisor; also the current operator gave him a 10 minute explanation concerning how the machine was to be used.
63 On 6 March 1999, having operated the machine for approximately two and a half weeks, the plaintiff injured his hand when he placed it in a chute, in order to feel for blockages in the machine. He said he was not aware that there were mixer blades in close proximity to where he placed his hand within the mixer and nobody had told him that. He said he had never seen inside the mixing drum.
64 When the appellant sued the respondent for damages for negligence the learned trial Judge found that the respondent was guilty of negligence. His Honour then dealt with the questions arising from s 175 of the Workers' Compensation and Rehabilitation Act 1981. Section 175 of the Act combined with the provisions of Division 2 of Part 4 of the Act, would if the respondent was deemed to be an employer of the appellant at the time he was injured, place constraints on the award to him of common law damages.
(Page 23)
65 The Judge held that the provisions of Division 2, Part 4 of the Act applied and that by reason of the provisions of the Act no award of damages could be made to the appellant.
On Appeal
66 The appellant contends that s 175 of the Act did not have the effect of deeming the respondent to be an employer for the purposes of the Act. Counsel for the appellant submitted that the appellant was at the relevant times employed by Integrated. There was evidence of that and it had been accepted by the respondent. It was common ground that the appellant was working for the respondent at the relevant time.
67 Section 175 relevantly provides:
"Division 2 – Insurance by principals, contractors, and sub-contractors
175. Principal contractor and sub-contractor deemed employers
(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act.
(2) The principal is entitled to indemnity from the contractor for the principal's liability under this section.
(3) The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal.
(4) …
(Page 24)
- (5) …
(6) …
(7) …."
68 It was submitted for the appellant that the question was whether a labour hire contract was a contract "for the execution of any work by or under the contractor" within the meaning of s 175(1); that a labour hire contract was for the supply of labour and not "for the execution of any work by or under the contractor"; that where the principal, in this case the respondent, controls, directs and manages the labour which is provided by the labour hire company (the appellant's true employer) the work is not the work of the labour hire company but the work of the principal.
69 It was submitted that the labour hire company was not performing the work. The work was performed in this case at the direction and under the control and supervision of the principal being the respondent. It was submitted that s 175 was concerned with principals employing contractors and subcontractors and that a labour hire company did not come within the notion of a contractor or subcontractor under the section; that a labourer employed by the labour hire company as the true employer under the Act was required under the Act to be covered by the compulsory insurance scheme. The labour hire company remained the employer pursuant to the definition of the Act.
70 It was submitted for the appellant that in this case, pursuant to the relevant contract, there was no provision for the "execution of any work by or under the contractor". Section 175 contemplated that an ordinary contractor would, for example, lay the bricks and get paid for that. The section was not designed to cover the situation where, as in this case, the labourer was working for the principal and not "under the contractor". In this case, there was no work to be performed "by or under the contractor". The relevant work was the operation of a mobile mixing plant. That was work "under" the respondent. The respondent owned the mixing machine. It directed the appellant how to use it. It supervised him in the use of it. In no sense was the work, work "under" Integrated. The respondent was simply hiring a labour unit to achieve the work which was the end result.
71 It was agreed that s 5 of the Act deems the original employer of the appellant, to be an employer for the purposes of the Act. Section 160 of the Act imposes an obligation on all employers to insure any worker employed by them for the purposes of the Act. The situation was covered from the appellant's point of view, because his employer was Integrated.
(Page 25)
72 It was argued that there was no contract for Integrated to operate a bagging machine at the respondent's premises and to employ the appellant to do the work. That did not happen. The contract provided that Integrated would provide qualified labour to do what the respondent wanted. The respondent had directed the worker.
The Contract
73 The relevant contract between Integrated and the respondent is entitled "Service Proposal". The first sentence in the body of the contract provides "Integrated Workforce (WA) is a supplier of quality, temporary and permanent staff".
74 It is then provided "The policy of Integrated Workforce (WA) is to provide temporary and permanent industrial staff which consistently meet our customers' needs and expectations in the most cost effective manner".
75 Under the heading "Operational procedures", it is provided "Integrated Workforce (WA) are committed to the servicing of your company's individual needs".
76 The next paragraph provides that:
"… upon receiving your phone call we strive to have a person(s) of appropriate skills on your site within the hour."
77 Paragraph 3 of that part of the contract provides that an employee of Integrated will be on site on the day of the commencement of the assignment to deliver timesheets, answer any queries and make an assessment of "our" employee's performance.
78 Under the heading "Commitment to service", it is provided that Integrated has a commitment "To provide high quality selectively recruited personnel to work in a suitably supervised environment as designated by you the client."
79 Integrated also undertook to replace any employee free of charge who is deemed unsatisfactory "by you" and to establish a pool of employees who are familiar "with your individual needs and as such can be reassigned to you upon request where possible."
80 It provided that Integrated personnel are fully covered by workers' compensation, public liability and motor vehicle insurance policies and that Integrated's costs cover the superannuation, group certificates, and payroll tax.
(Page 26)
81 The obligation of the Respondent under the proposal is amongst other things "To provide adequate supervision for any employees assigned …" and to "maintain a signed record of the hours completed by all Integrated Workforce employees on the timesheets provided".
82 It was conceded for the respondent that the proposal was a labour hire contract and that the true contract of employment remained with Integrated. It was conceded that there was evidence that in terms of day to day management and control, that had passed to the respondent.
83 It was contended for the respondent that Integrated were doing a bit more than hiring out labour. Integrated was undertaking a responsibility to appropriately select staff and to liaise with the host employer to ascertain whether in fact the employee was suitable. Also Integrated had undertaken that if the employee was not suitable it would replace that employee with another suitable person.
84 It was conceded for the respondent that Integrated were not undertaking to actually do the work which the respondent required the employee for. However, it was submitted that the execution of the work was under the contractor.
85 In this case Integrated were not taking the employees to the respondent to supervise and direct them as to what they were to do. However, it was submitted for the respondent that Integrated were given broad information regarding the skill level and the trade of the person needed. There was a process whereby Integrated and the respondent would liaise with each other regarding what in broad terms was the job to be performed and what sort of person was needed.
Conclusion
86 The question, in my view is, whether the execution of the work was "by or under" Integrated.
87 Integrated was not running the business in which the plant operator performed the work. It was running a business of hiring employees to other persons, in this case, the respondent.
88 It does not appear from the reasons of EM Heenan J in Hewitt v Benale Pty Ltd [2002] WASCA 163 that arguments similar to those advanced by the present appellant were considered by his Honour in that decision. His Honour said that it was "acknowledged" by the parties that Benale Pty Ltd was the deemed employer of Mr Hewitt within the
(Page 27)
- meaning of s 175 of the Act – see par 112 of his Honour's reasons for judgment.
89 In my opinion the relevant work was not performed "by or under the contractor" and s 175 is not applicable. This first appeal should be allowed.
Second appeal – Price v Resolute Resources Limited
Facts
90 On 15 November 2002 the claim of the appellant for damages for personal injuries against the respondent was dismissed. The appellant now appeals on similar grounds to those of the appellant Marsden.
91 There are however additional matters to which I will refer.
92 The appellant who was employed by Drake Personnel Limited ("Drake") worked at the relevant time as a maintenance supervisor at the Marymia Goldmine near Meekatharra. The respondent at all material times occupied and controlled the mine.
93 In his statement of claim the appellant alleged that Drake hired his services to the respondent in order that he could perform work for the respondent at the mine. Further, the appellant alleged that he worked under the control and at the direction of the respondent.
94 It was claimed in the statement of claim that on 2 December 1993 at the mine, the appellant was required by the respondent through its servant and supervisor, Mr Berry, to assist a fellow worker to remove an air conditioning unit weighing approximately 50 kilograms from its setting in a wall at the workers' mess. Whilst the appellant was attempting to remove the unit from the wall, the unit moved suddenly towards him causing him to bear the bulk of its weight. It thereby caused him injury.
95 The respondent pleaded that the appellant had been trained in lifting and safety procedures by both the respondent - on or about the date he commenced working at the mine site - and by Drake on or about the first time he was engaged by Drake . It was claimed in the respondent's defence that pursuant to an agreement dated 17 July 1992 between Drake and the respondent, the respondent conducted an occupational health and safety programme including safety and general induction procedures, safety orders at varying intervals pursuant to statutory safety obligations, regular meetings and periodic training in safety matters. It was pleaded that the respondent required participation in those safety programmes.
(Page 28)
96 It was further pleaded by the respondent that the appellant was a qualified boilermaker and fitter who was a relief supervisor at the site. The respondent did not admit that the appellant worked under its control and at its direction.
97 The appellant said in evidence that Mr Berry had told him to go down to the camp and help Mr Brenchley, an electrical fitter, to remove an air conditioner from the wall in the wet mess. Mr Brenchley was also employed by Drake. Mr Berry worked for the respondent. While they were removing the air conditioner the appellant said he took much of the weight and injured himself.
98 Mr Brenchley said that Mr Berry had told him to check out the wet mess air conditioner. He had noticed that it was leaking gas and needed to be welded. For that purpose, he had to take the air conditioner to the workshop. He said that Mr Berry had allocated the appellant to help him. The accident occurred in the wet mess of the canteen area at the camp.
99 Mr Berry, the respondent's employee – who was called by the appellant - said in evidence that he had instructed Mr Brenchley to have a look at the air conditioner in the wet mess. It had been playing up. Mr Brenchley had reported that the air conditioner had to be removed for repair. Mr Berry had asked Mr Brenchley to ask the appellant to help Mr Brenchley take the air conditioner out.
100 Mr Berry said he was in charge of Mr Brenchley and the appellant on the site. Mr Berry reported to the respondent's plant superintendent. There were about 10 people employed in his department. He was able to employ and terminate the services of employees within that maintenance crew.
101 Mr Berry's evidence is significant because apparently he regarded the 10 people he referred to as being employed "in his department". Further he was able to employ and terminate the services of employees within that maintenance crew.
102 Mr Berry agreed that Mr Brenchley was an experienced electrical contractor capable of assessing the assistance he needed to remove and repair the air conditioner.
Findings by trial Judge
103 His Honour said that the respondent had called no evidence concerning the events at the Marymia Mine on the 2 December 1993.
(Page 29)
- There was evidence that the respondent had instructed the appellant how to lift plant and equipment correctly.
104 His Honour found that the appellant was employed by Drake as a maintenance supervisor and that Drake had hired the services of the appellant to the respondent in order that the appellant could perform work for the respondent at the mine. The Judge found that the appellant had worked under the control and at the direction of the respondent and in particular, Mr Berry. The evidence was that Mr Berry had supervised and directed the work which the appellant and Mr Brenchley carried out. The Judge found that the respondent was liable for negligence.
105 The learned Judge was informed that counsel had agreed that the appellant had not obtained the leave of the Court to commence the proceedings pursuant to s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 as it had applied when the writ was issued.
106 Although his Honour says in his reasons for judgment that counsel for the respondent had submitted that the respondent was the principal, Drake was the contractor and the appellant was the worker within the meaning of s 175(1) of the Act, and that counsel for the appellant had not submitted otherwise, and his Honour said he accepted that submission, this Court was informed that that was not correct. An affidavit was produced of the transcript of the hearing before the learned Commissioner commencing at page 371 of the transcript where counsel submitted that the facts did not come within s 175. At page 372 it was submitted: "There is no evidence whatsoever as to the terms of the contract between Drake and Resolute." Further, that there was no evidence at all as to the work which was required to be done "so as a threshold point the defendant does not get into s 175."
107 His Honour found that the circumstances came with s 175(1) of the Act and did not fall within the exception contained in s 175(3). For that reason the appellant's claim was dismissed.
Appeal
108 It is alleged in the statement of claim that the appellant was employed by Drake Personnel Ltd as a maintenance supervisor and that Drake hired the services of the appellant to the respondent in order that the appellant could perform work for the respondent at the mine. The allegations are admitted in the defence.
(Page 30)
109 It was submitted for the respondent that if Drake Personnel was telephoned by a principal who said I need a labourer for three months to help build, for example, a carport, and if he was engaged, that person would be executing the work "under the contractor", because the contractor had agreed to provide a person for the task.
110 The appellant said in evidence that he had to take orders from the respondent: "They owned the place and we had to do what was expected of us by those people". He said that the maintenance supervisor, who was an employee of the respondent, determined what the appellant did on a daily basis. If the maintenance supervisor was not there "it would be the mill supervisor, or the mill superintendent or whoever was…".
111 The appellant said that the respondent was controlling the mine site and Drake "hired us to work for Resolute". He went on to say "But on the site we - like, we were only labour, if you know what I mean."
112 When asked about Mr Berry's position the appellant said:
"Well he was our boss…and he was to farm out the work to me so I could give it to the people like - but every morning we had a meeting which I was involved in anyway, which - and Geoff [Mr Berry] was involved in and all the other guys from Resolute, and they would say what they wanted done that day, and virtually you know I mean, it was just a - get to know what happened yesterday and what's going to happen today, and when we are going to plan a, you know, a shut down. But I mean it was all up to those guys to tell me what they wanted done."
113 Mr Berry said in evidence that he worked for Resolute Resources. He was the maintenance supervisor. He was in charge of the men. He said:
"The maintenance company or the maintenance contractors were Drake Industrial … and various other contractors that used to come on site."
114 He was asked "Did you basically have a maintenance crew?" He answered "Yes". He said that he scheduled and gave out the work that had to be done for the day or through the time - made sure the jobs were done effectively…and made sure that they were completed properly.
(Page 31)
115 It was submitted for the respondent that there was no other evidence concerning the respondent "So even though I say we can still succeed on "labour hire", the only other evidence in this case is that the maintenance personnel were Drake Industrial, and the other person who gave evidence, Mr Brenchley, who was the electrical maintenance supervisor, was also a Drake person.
116 The respondent also relied upon the plaintiff (appellant's) counsel's words in opening:
"During 1993 he [the appellant] was employed by Drake Personnel. Drake Personnel is the type of employer which lets or hires the services of its employees to others. One of those employers is the defendant in this case, Resolute Resources Ltd. In December 1993 in the course of his employment with Drake, Mr Price was sent to perform maintenance duties at the Marymia Mine which is outside Meekatharra and that is a mine site which is controlled and operated by Resolute the defendant. He was then managed by them and the work systems were established and controlled by the defendant. Indeed as the operator of the mine pursuant to the provisions of the Mine Safety and Regulations Act, they have control of the site in any event. The plaintiff, you will hear your Honour was given his work to do by the defendant's supervisor Mr Geoffrey Thomas Berry. It was Mr Berry's duty to assign work to various members of the maintenance crew comprising ten people. It was his duty to assess how many persons would perform any particular task and appoint such persons to the task. He was the person in charge of safety in general in the area of maintenance. Mr Price was a fitter leading hand and at times acted as relief maintenance supervisor. One member of the maintenance crew who you will hear evidence from was a Mr Russell Brenchley…"
117 It was submitted for the respondent that in this case Drake was engaged to provide maintenance personnel. As counsel for the respondent recalled the evidence, there were no direct Resolute Resources employees doing "hands on" maintenance work. Those persons were engaged from Drake to do the maintenance work. It was submitted that it was not simply "hire labour". The appellant was directly engaged from Drake to perform the maintenance duties on site.
(Page 32)
118 It was submitted that Drake provided the maintenance at the request and under contract to Resolute. Mr Berry's evidence was the only evidence on this question. There was no other evidence led. There had been no cross-examination of Mr Berry on that aspect.
119 When asked at the appeal whether the maintenance contract was in evidence, counsel for the respondent replied "No. There is no evidence of any other contractual arrangement." When asked whether Mr Berry's evidence that the maintenance company or the maintenance contractors were Drake Industrial was the evidence of the situation, counsel replied "Yes".
120 In answer to the above propositions it was submitted by counsel for the appellant that there was no maintenance contract in evidence. There had only been hearsay evidence from Mr Berry as to what the arrangement was.
121 As I understand the proposition for the respondent, it was that the appellant was doing work for the contractor, Drake. He was executing work "by or under the contractor" because he was sent out by the contractor (Drake) to do whatever was required of him by the respondent.
122 It was submitted for the appellant that the contract pursuant to s 175(1) must be for the execution of work "by or under the contractor". That in this case the respondent had elected not to put the contract before the Court so the Court had only hearsay evidence of what the contract was.
123 In my opinion, in a matter as this, the principles established in Jones v Dunkel (1959) 101 CLR 298 should be applied. At 312 of that decision Menzies J said:
"In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."
(Page 33)
124 In Commercial Union v Ferrcom (1991) 2 NSWLR 389 at 418 Handley J A said:
"There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates 'as the most natural inference that the party fears to do so'. This fear is then 'some evidence' that such examination in chief 'would have exposed facts unfavourable to the party': see Jones v Dunkel (at 320-321) per Windeyer J."
125 In this case the respondent was defending an action for negligence. It wished to bring itself with the "curtailment" provisions of the Act which limit the right of a worker to claim common law damages. It did not put all the relevant evidence of the contract before the Court. In those circumstances, it should not be entitled to a judgment that it had contracted with another person (the contractor) for the execution "of any work by or under the contractor".
126 For the above reasons I would allow the appeal.
127 The appellant had a fall back position and that was that the exception under s 175(3) was applicable. That subsection provides:
"The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal."
128 It was submitted that in this case the work performed by the appellant was the removal of an air conditioning unit from the wall of a wet mess. The question under s 175(3) was whether the work on which the appellant was employed at the time of the accident was "directly a part or process in the trade or business of the principal". On this question the learned trial Judge said:
"Counsel for the defendant submitted the removal of the air conditioner was clearly part of the defendant's business of operating the mine site. On the evidence, no other conclusion is open. Accordingly, this case does not fall within the exception contained in s 175(3) of the Act…"
(Page 34)
129 It was submitted for the appellant that the issue in this context was whether the assistance of another contractor in keeping the drinks cold was directly a part or process in the business of the respondent.
130 It was submitted that there had been evidence that the mess and the accommodation quarters at the mine were contracted to a camp manager, Poon Brothers, that the Court was not concerned with the operation of the mine such as in extracting ore. It was submitted that it has to be just more than incidental to the business.
131 It was further submitted that there were no facts upon which the respondent could take itself outside the proviso in s 175(3); that there was no evidence that the respondent operated a fly-in fly-out mine site in which it was required to provide all necessary amenities of life to the workers on site; that there was no evidence as to what precisely the respondent was doing on site; of what precisely in the terms of s 175(3) was its trade or business?
132 It was agreed that this was a value judgment and that there was no authority on the subject other than Jones v Wesfarmers Ltd [2003] WASCA 225 which held that "the section was restrictive" because it sought to exclude the operation of the section. It was agreed that the question ultimately came down to whether there was any evidence open to the learned trial Judge to find that the work was directly a part or process in the business of the principal.
133 Workers have to eat and drink at a mine site. The mess was part of the amenities. The appellant was a maintenance supervisor. He was employed in maintaining an air conditioner at the time. In my opinion, the worker was employed in work which was "directly a part or process in the trade or business of the principal". I would not uphold this contention.
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