Petrovski v ISS Security Pty Limited and Anor (Ruling)
[2024] VCC 2149
•15 February 2024 (ex tempore)
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationGENERAL LIST Case No. CI-22-04636
ACE PETROVSKI Plaintiff v ISS SECURITY PTY LIMITED
(ABN 001 375 186)First Defendant and AUSTRALIA PACIFIC AIRPORTS (MELBOURNE) PTY LIMITED
(ABN 62 076 999 114)Second Defendant ---
JUDGE:
HER HONOUR JUDGE ROBERTSON
WHERE HELD:
Melbourne
DATE OF HEARING:
6, 7, 8, 9, 12, 13 and 14 February 2024
DATE OF RULING:
15 February 2024 (ex tempore)
CASE MAY BE CITED AS:
Petrovski v ISS Security Pty Limited and Anor (Ruling)
MEDIUM NEUTRAL CITATION:
[2024] VCC 2149
RULING
---Subject:PRACTICE AND PROCEDURE
Catchwords: Application of Occupational Health and Safety Regulations 2017 (Vic)
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Occupational Health and Safety Regulations 2017 (Vic); Interpretation of Legislation Act 1984 (Vic)
Cases Cited: R v ACR Roofing Pty Ltd (2004) 11 VR 187; R v H Waterhouse & Son Pty Ltd [2009] VSCA 121
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr J P Brett KC with
Mr G PierorazioArnold Thomas & Becker For the First Defendant Mr M K Clarke with
Ms K M ManningWisewould Mahoney For the Second Defendant Ms R L Kaye KC with
Ms H DanielSparke Helmore HER HONOUR:
Background
1By a proceeding commenced by Writ dated 3 November 2022, the plaintiff claimed damages for negligence against the first and second defendants and for breach of statutory duty against the first defendant.
2The trial of the proceeding was listed to commence on 6 February 2024.
3At the commencement of the trial, Senior Counsel for the plaintiff made application to amend the plaintiff’s Statement of Claim to allege breaches by the second defendant of duties pursuant to regulations 26, 27 and 28 of the Occupational Health and Safety Regulations 2017 (Vic) (“the Regulations”). Following argument, I allowed the amendments but given the lateness of the application, I indicated to the parties, if necessary, the question of the operation of the regulations could be raised at the conclusion of the evidence.
4After evidence and the conclusion of the parties’ cases, but before closing submissions were made to the jury, Ms Kaye KC made application for judgment non obstante veredicto. She also made application that the question of breach by the second defendant of duties pursuant to the provisions of the Regulations, not be left to the jury.
Submissions
5The second defendant submitted that regulations 26, 27 and 28 of the Regulations, which detail how an employer complies with a duty under s21 or s35 of the Occupational Health and Safety Act 2004 (Vic) (“the Act”) in relation to employees, were not applicable in this case and should not be left to the jury.
6First, it was submitted the second defendant was not an occupier of the site. They were acting like an employer by directing the employees of the first defendant as an independent contractor or running the relevant work processes. The first defendant was a specialised service provider, and its employees were under the direction of the first defendant’s supervisors with a layer of management over those persons within the first defendant.
7In support of this submission, the second defendant relied upon:
(a) the fact that the second defendant has very little involvement day-to-day compared to usual situations where the Regulations are engaged;
(b) the first defendant having responsibility for the day-to-day operation of the screening points;
(c) the lack of involvement of the second defendant, and the involvement of the first defendant, in issues relating to heavy bags;
(d) the tender process undertaken by the second defendant to identify a suitably qualified security contractor;
(e) the choice of a specialised security contractor like the first defendant, capable of operating independently of the second defendant, and taking responsibility for what were described by Mr Dollard in his evidence as ancillary, such as enterprise bargaining and manual handling;
(f) the provision of training by the first defendant rather than the second defendant;
(g) the significant number of personnel utilised by the first defendant compared to the three or four people in the first defendant’s team;
(h) the extremely minimal control by the second defendant over manual handling compared to the presence of managers of the first defendant onsite;
(i) the fact that the standard operating procedures are reviewed to ensure compliance with the second defendant’s government obligations rather than to oversee or double check the first defendant’s manual handling processes;
(j) the contractual provisions, including:
(i)clause 17.6 titled “No duty of care” which articulates that the second defendant did not assume a duty to advise the first defendant to supervise or control the first defendant’s operation or methods of working, to ensure proper performance of obligations or to exercise any discretion.
(ii)Schedule 1, clause 9, titled “Obligations” which placed the obligation to provide and maintain a safe working environment on the first defendant.
8Second, it was submitted although the second defendant was an “employer” for the purposes of the Regulations, the first defendant was not an “independent contractor” and was not “engaged by the employer”. The work done by the first defendant could not as readily have been done by the second defendant. Consequently, any provision of the Regulations setting out a way an employer complies with a duty under s21 and s35 of the Act did not extend to the first defendant and concomitantly, did not extend to the first defendant’s employees.
9Reliance was placed upon the decision in R v ACR Roofing Pty Ltd.[1] It was submitted that the services provided by the first defendant, which had been engaged through a specific tender process, was considered to be experienced, and which had been paid a large sum of money, could not have been performed by the second defendant.
[1] (2004) 11 VR 187 at page 207, paragraph [52]
10Mr Brett KC submitted that the first defendant was an independent contractor of the second defendant. The first defendant provided staffing for facilities the second defendant created and operated. The second defendant operated the Melbourne Airport. It provided the facilities. It provided the equipment. It employed staff on contract. It engaged an independent contractor – the first defendant – who in turn employed employees.
11Reference was made to the decision in The Queen v H Waterhouse & Son Pty Ltd.[2]
[2] [2009] VSCA 121
12Further, contrary to the submission made by Ms Kaye KC on behalf of the second defendant that the second defendant lacked the expertise or specialised workforce to enable it to complete the work required for the contract, in fact, the second defendant retained the ability to direct or assemble their workforce.
13Additionally, it was submitted the matters raised on behalf of the second defendant had no relevance to the question whether there was a statutory obligation. They went to the question of how far the second defendant had discharged its obligations.
14In any event, it was submitted despite clause 17.2 of the contract (no assumed duty of care), the second defendant had a contractual role to play in the safety of the first defendant’s employees. Reliance was placed on clause 2, Schedule 1, which required that the standard operating procedures were to be developed by the first defendant.
15Notwithstanding clause 17.2 of the contract, the plaintiff submitted the standard operating procedures were then required to be submitted by the first defendant to the second defendant for approval under clause 2(iv). In that way, the second defendant had power to require amendments of the standard operating procedures. Although the second defendant sought to contend that the power to require amendments to the standard operating procedures related only to terrorism and security concerns, the plaintiff submitted that was not what the contract said.
16Finally, it was submitted that clause 9 of Schedule 1, particularly clause (v), gave the second defendant a role to play in occupational health and safety management. It permitted the second defendant to direct what the first defendant was to do in relation to safety of its employees.
17Both the plaintiff and the second defendant eschewed reliance on regulation 8(2) of the Regulations, indicating that it dealt with a specific class of regulations not relevant to the present case.
18The first defendant supported the plaintiff’s submissions with respect to the application of the Regulations.
Analysis
19The claim of breach of statutory duty against the second defendant is a claim that the second defendant breached the provisions of the Regulations, specifically, regulations 26, 27 and 28.
20Regulation 26 provides:
“Hazard identification
An employer must, so far as is reasonably practicable, identify any hazardous manual handling undertaken, or to be undertaken, by an employee.”
21Regulation 27 provides:
“Control of risk
(1)An employer must, so far as is reasonably practicable, eliminate any risk of a musculoskeletal disorder associated with hazardous manual handling.
… .”
22Regulation 28 provides:
“Review of risk control measures
(1) An employer must review and, if necessary, revise any measures implemented to control risks under regulation 27—
(a) before any alteration is made to any thing, process or system of work involving hazardous manual handling, including a change in the place where that work is undertaken; or
(b)if new or additional information about hazardous manual handling becomes available to the employer; or
(c)if an occurrence of a musculoskeletal disorder at a workplace is reported by or on behalf of an employee; or
(d)after any incident occurs to which Part 5 of the Act applies that involves hazardous manual handling; or
(e)if, for any other reason, the risk control measures do not adequately control the risks; or
(f)after receiving a request from a health and safety representative.
… .”
23The submission made on behalf of the second defendant raised three principal issues:
(a) whether the second defendant was an employer;
(b) whether the first defendant was an independent contractor of the second defendant, and then, by extension, whether the plaintiff was an employee of an independent contractor; and
(c) whether if the first defendant was an independent contractor, it was engaged by the second defendant for the purposes of the Regulations.
24In any assessment of the meaning of a statute, the starting point is the text of the provision under review. Regulation 8(1) of the Regulations provides:
“8 Independent contractors
(1)A provision of these Regulations that sets out a way that an employer complies with a duty under section 21 or 35 of the Act in relation to employees extends to the employer's duty under that section to an independent contractor engaged by the employer and any employees of the independent contractor.”
“Employer”
25In relation to the first of these submissions, “employer” and “employee” are defined in s5 of the Act to be:
“‘employee’ means a person employed under a contract of employment or under a contract of training;
‘employer’ means a person who employs one or more other persons under contracts of employment or under contracts of training.”
26The objects of the Act are set out in s2:
“2 Objects
(1) The objects of this Act are—
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d)to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—
having regard to the principles of health and safety protection set out in section 4.
… .”
27The second defendant accepted it was an “employer” for the purposes of the Act.
28“Employer” is not separately defined in the Regulations; however, s23 of the Interpretation of Legislation Act 1984 (Vic) provides:
“23 Construction of subordinate instruments
Where an Act confers power to make a subordinate instrument, expressions used in a subordinate instrument made in the exercise of that power shall, unless the contrary intention appears, have the same respective meanings as they have in the Act conferring the power as amended and in force for the time being.”
29Consequently, “employer” for the purposes of the Regulations has the same meaning as the Act.
30It follows that the second defendant is also an “employer” for the purposes of regulation 8 of the Regulations.
“Employee”
31There was no dispute that the plaintiff was an employee of the first defendant.
“Independent contractor”
32The contention on behalf of the second defendant was that the first defendant was not an independent contractor and therefore that the plaintiff was not an employee of an independent contractor. Consequently, regulation 8(1) of the Regulations did not extend the obligation imposed on the second defendant to comply with a duty under s21 or s35 of the Act in relation to the plaintiff.
33The phrase “independent contractor” is not defined in the Regulations or the Act. Nor could the parties direct me to any Victorian authority which directly considered its meaning in the context of regulation 8(1). Further, the Regulations do not expressly or impliedly impose an obligation to consider any particular factors to determine its meaning.
34The parties accepted that the first defendant was carrying on a business.
35In considering whether the second defendant is an independent contractor, it is appropriate to first consider what is meant by that phrase.
36The word ‘independent’ has a clear meaning. The Oxford English Dictionary (2nd edition) defines independent as:
“Not depending upon the authority of another, not in a position of subordination or subjection; not subject to external control or rule; self-governing, autonomous, free.
Not depending on something else for its existence, validity, efficiency, operation, or some other attribute; not contingent on or conditioned by anything else.”
37The Macquarie Dictionary (5th edition) defines independent as:
“not influenced by others in matters of opinion, conduct, etc.; thinking or acting for oneself: an independent person.
not subject to another’s authority or jurisdiction; autonomous; free.
not influenced by the thought or action of others; independent research.
not dependent; not depending or contingent on something for existence, operation, etc.”
38The Oxford English Dictionary (2nd edition) defines ‘contractor’ as:
“One who contracts or undertakes to supply certain articles, or to perform any work or service (esp. for government or other public body) … .”
39The Macquarie Dictionary (5th edition) defines ‘contractor’ to mean:
“someone who contracts to furnish supplies or perform work at a certain price or rate.
someone or something that contracts.”
40Having considered those definitions, it is clear that the first defendant was a contractor. It performed services at a certain price for the second defendant. The dispute really centred on whether the first defendant was “independent” of the second defendant.
41Of relevance in the current proceeding are the parts of the definition of independent:
(a) not in a position of subordination or subjection;
(b) not subject to external control or rule;
(c) not dependent on something else for its existence;
(d) not depending upon the authority of another, and
(e) self-governing, autonomous.
42Having considered the ordinary meaning of ‘independent’ and ‘contractor’, I have concluded that in providing services to the second defendant, the first defendant was not in a position of subordination or subjection. It was self-governing, not subject to external control, and did not depend on the second defendant for its existence.
43It was not a part of, or totally dependent upon, the second defendant.
44It was a separate company with its own ACN and corporate identity.
45It operated a very large, multi-national business.
46It did not rely solely on the second defendant to earn income and was not dependent on the second defendant for its existence given the scale of the business of the first defendant, and the nature of its operations across domestic and international jurisdictions and industry sectors.
47It presented to the world at large as having an existence independent of the second defendant.
48Further, the provisions of the contract between the first and second defendant also support the conclusion that the first defendant was an independent contractor.
49In broad terms, pursuant to the contract, the second defendant operated the Melbourne Airport. It provided the facilities and equipment. The first defendant was contracted to provide staffing for the facilities the second defendant operated. The evidence was that the second defendant did not seek to direct the first defendant as to how to perform its contracted services.
50Although it is true there was a level of control exercised by the second defendant over the first defendant with respect to the safety of the first defendant’s employees, for instance as seen in clause 2, schedule 1 of the contract, the first defendant was nevertheless not in a position of overall external control from the second defendant.
51Further, even if the standard operating procedures were required to be submitted to the second defendant for approval under clause 2(iv), there were legitimate business reasons for that, including security concerns. Rather than seeking to regulate every conceivable aspect of the first defendant’s business, the contract in fact, reserved to the first defendant considerable discretion as to how it would perform the contracted services and sought to support the first defendant in the performance of its obligations by delineating the obligations which were to be performed by the second defendant.
52In my view, when the above matters are taken into account together with the totality of the evidence, the contractual arrangements between the defendants appeared to be a traditional independent contractor arrangement.
53Before finally reaching a conclusion in that regard, in construing regulation 8(1), I have also considered the provision with a view to discerning its purpose. Where, as here, there are differing views as to the possible meaning of a provision, a meaning promoting the purpose or object underlying the statute is to be preferred over one that does not. Where legislation has a beneficial or protective purpose — which the Occupational Health and Safety legislation and regulations do – the provisions should be construed so as to give the fullest effect to the legislative purpose. When the purpose of the legislation is considered – amongst other things, to secure the health, safety and welfare of employees and other persons at work – this tends further to the conclusion that the legislation intended the first defendant to be regarded as an independent contractor engaged by the second defendant so as to extend the protections of Regulations 26, 27 and 28 to employees of the first defendant such as the plaintiff.
54For each of these reasons, having considered the parties’ submissions and all of the evidence, I have concluded that the first defendant was an “independent contractor” for the purposes of regulation 8(1).
55Because the first defendant employed employees such as the plaintiff, and I have concluded that the first defendant was an independent contractor, I have also concluded that the plaintiff was an employee of the independent contractor for the purpose of regulation 8(1).
56The result is to extend the duties imposed on the second defendant under s21 or s35 of the Act and regulations 26, 27 and 28 of the Regulations, to the first defendant and the plaintiff.
57For these reasons I reject the second defendant’s application that the issue of breach of statutory duty in respect of it be taken away from the jury.
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