Priest v Central Norseman Gold Corporation Pty Ltd - [2022] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PRIEST -v- CENTRAL NORSEMAN GOLD CORPORATION PTY LTD [2022] WASC 99
CORAM:   CURTHOYS J
HEARD:   24 NOVEMBER 2020
DELIVERED          :   24 MARCH 2022
FILE NO/S:   SJA 1030 of 2020
BETWEEN:   KRISTIN PRIEST
Appellant
AND
CENTRAL NORSEMAN GOLD CORPORATION PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   KALGOORLIE MAGISTRATES COURT
Coram:   MAGISTRATE A D HILLS-WRIGHT
File Number            :   KA 3098 of 2018

Catchwords:

Criminal law - Appeal against acquittal - Employer failing to provide and maintain at mine a working environment in which employees not exposed to hazards - Labour hire arrangements - Whether magistrate erred in fact and law in construction of s 15C of the Mines Safety and Inspection Act 1994 (WA) - Meaning of 'agent' - Whether s 15A and s 15C of the Act are mutually exclusive

Legislation:

Mines Safety and Inspection Act 1994 (WA), s 9(1), s 15A, s 15C

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2 and 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	E C I Fearis
Respondent	:	A G Manos

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	S Billing & Associates

Cases referred to in decision:

Carr v Western Australia (2007) 232 CLR 138
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

CURTHOYS J:

Introduction

On 20 March 2020, the respondent, Central Norseman Gold Corporation Pty Ltd (CNGC), was acquitted after trial in the Magistrates Court of the offence of failing as an employer to provide and maintain at a mine a working environment in which its employees are not exposed to hazards under s 9(1) of the Mines Safety and Inspection Act 1994 (WA) (MSI Act).
The appellant appeals against the acquittal on three grounds. These grounds essentially allege that the magistrate erred in fact and law in his construction of s 15C of the MSI Act.
The parties agree that this appeal turns on the issue of statutory construction alone.[1]
[1] Appellant's outline of submissions and list of authorities dated 27 October 2020 [5], [14] ‑ [15] (Appellant's Submissions); Respondent's outline of submissions dated 18 November 2020 [2] (Respondent's Submissions).
For the reasons that follow, leave to appeal is granted and the appeal is dismissed.

The charge

On 16 August 2018, CNGC was charged that on 21 August 2015, at Eastern Goldfields, being an employer, failed so far as was practicable, to provide and maintain at a mine a working environment in which its employee, Bruce Harris, was not exposed to the hazard of ground collapse, contrary to s 9(1) of the MSI Act.[2]
[2] Prosecution noticed lodged 16 August 2018, charge number KA 3098/2018.
The facts of the offending were stated by the prosecutor at trial. They are not in dispute and are the subject of a statement of agreed facts.[3]
[3] Exhibit 2 tendered at the trial.
At all material times, CNGC was the owner and operator of a mine located outside Norseman in the Eastern Goldfields region of Western Australia. On 1 August 2013, CNGC and Hampton Transport Services Pty Ltd (Hampton) entered into a Mining Equipment Wet Hire Agreement (the agreement) by which Hampton agreed to perform gold extraction works at a pit at the mine.
Mr Harris was employed by Hampton pursuant to a contract of employment with Hampton. There was no contract of employment between Mr Harris and CNGC.
At around 3.20 pm on 21 August 2015, Mr Harris was operating an excavator to remove blast rubble from an area of the pit floor when the excavator he was operating fell, becoming lodged in the cavity of the pit floor and suspended part way into the void below.

Magistrates Court proceedings

On 30 November 2018, CNGC pleaded not guilty to the charge. The trial was held in the Kalgoorlie Magistrates Court on 18 and 19 December 2019.
The prosecution case was that CNGC was the employer and Mr Harris its employee by operation of s 15C of the MSI Act, which deals with labour hire arrangements.[4]
[4] Magistrate's reasons for decision dated 20 March 2020 [6] ‑ [8] (Reasons for Decision); Appellant's Submissions [5].
CNGC conceded that if the prosecution proved the elements of 'employer' and 'employee' it should be convicted of the charge.
CNGC admitted all other elements of the offence. In particular, CNGC accepted that inadequate probe drilling, the failure to develop a void model, and the failure to retain a geotechnical engineer to conduct a geotechnical assessment of the stability of the pit floor, in the circumstances, amounted to a failure so far as was practicable to provide and maintain a working environment in which Mr Harris was not exposed to the hazard of ground collapse.[5] These elements were the subject of formal admissions pursuant to s 32 of the Evidence Act 1906 (WA) and were contained within the statement of agreed facts.[6]
[5] Reasons for Decision [21].
[6] Reasons for Decision [12].
Given the various concessions made by CNGC, whether s 15C of the MSI Act applied was the central issue for the magistrate to determine.
On 20 March 2020, the magistrate acquitted CNGC of the charge. The magistrate was not satisfied that s 15C applied.[7]
[7] Reasons for Decision [82].

Grounds of appeal

On 17 April 2020, the appellant lodged a notice of appeal against acquittal on the following three grounds:
(1)The learned magistrate erred in law and fact in finding that Hampton was not an agent within the meaning of s 15C(1) of the MSI Act.
(2)The learned magistrate erred in law and fact in finding that Mr Harris was not carrying out work for CNGC pursuant to an agreement between Hampton and CNGC and was instead carrying out work for Hampton.
(3)The learned magistrate erred in law and fact in finding that the agreement between Hampton and Mr Harris did not apply to the carrying out of the work by Mr Harris for CNGC.[8]
[8] Appeal notice dated l7 April 2020.
It is necessary for the appellant to establish all grounds of appeal to succeed in the appeal.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required for each ground of appeal.[9]
[9] Criminal Appeals Act 2004 (WA) s 9(1).
Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of success.[10] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum.[11]
[10] Criminal Appeals Act 2004 (WA) s 9(2).
[11] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

The MSI Act

The long title of the MSI Act states that it is an Act:
to consolidate and amend the law relating to the safety of mines and mining operations and the inspection and regulation of mines, mining operations and plant and substances supplied to or used at mines; to promote and improve the safety and health of persons at mines and for connected purposes.
The objects of the MSI Act are:[12]
(a)to promote, and secure the safety and health of persons engaged in mining operations; and
(b)to assist employers and employees to identify and reduce hazards relating to mines, mining operations, work systems and plant at mines; and
(c)to protect employees against the risks associated with mines, mining operations, work systems at mines, and plant and hazardous substances at mines by eliminating those risks, or imposing effective controls in order to minimize them; and
(d)to foster and facilitate cooperation and consultation between employers and employees, and associations representing employers and employees, and to provide for the participation of those persons and associations in the formulation and implementation of safety and health standards and optimum working practices; and
(e)to provide procedures for employers and employees to contribute to the development and formulation of safety legislation for mines and mining operations and to consult regarding its administration.
[12] Mines Safety and Inspection Act 1994 (WA) s 3.
Part 2 of the MSI Act deals with general duties relating to occupational safety and health. Section 9(1) imposes specific duties on employers aimed at ensuring that employers provide and maintain a mine working environment in which employees are not exposed to hazards.
Section 9A sets out the penalties for an employer's breaches of the duties in s 9(1) in different circumstances.
Part 2 div 3 of the MSI Act relates to certain non-traditional workplace situations which are to be treated as employment for the purposes of s 9 and s 9A.[13]
[13] Pt 2 div 3 includes s 15A, s 15B and s 15C, each pertaining to a different workplace arrangement.
Section 15C deals with 'labour hire arrangements'. Section 15C(2) provides:
This section applies where, under a labour hire arrangement, work is carried out for remuneration by a worker for a client of an agent (the client) in the course of mining operations carried on by the client.
Pursuant to s 15C(3), a 'labour hire arrangement' exists where:
(a)an agent has for remuneration agreed with the client to provide a worker to carry out work for the client; and
(b)there is no contract of employment between the worker and the client in relation to the work; and
(c)there is an agreement (which may be a contract of employment) between the worker and the agent as to the carrying out of work including in respect of remuneration and other entitlements; and
(d)that agreement applies to the carrying out of the work by the worker for the client.
Pursuant to s 15C(1), a 'worker' includes an employee or a contractor. An 'agent':
(a)means a person who carries on a business of providing workers to carry out work for the clients of the person; and
(b)includes a group training organisation as defined in section 7(1) of the Industrial Relations Act 1979;
Section 7(1) of the Industrial Relations Act 1979 (WA) defines 'group training organisation' as 'an organisation that manages the employment and training of apprentices under contracted work‑based arrangements for the purpose of hosting those apprentices out to other employers'.
Section 15C(4) of the MSI Act provides:
Where this section applies, sections 9 and 9A have effect as if -
(a)each of the agent and the client were the employer of the worker; and
(b)the worker were an employee of each of the agent and the client,
in relation to any matter that -
(c)comes within section 9; and
(d)as regards -
(i)the agent, is a matter over which the agent has the capacity to exercise control; or
(ii)the client, is a matter over which the client has the capacity to exercise control.
Section 15A deals with 'contract work arrangements'. It relevantly provides:
(1)This section applies where a person (the principal) in the course of mining operations engages a contractor (the contractor) to carry out work for the principal.
(2)Where this section applies, sections 9 and 9A have effect -
(a)as if the principal were the employer of -
(i)the contractor; and
(ii)any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned,
in relation to matters over which the principal has the capacity to exercise control; and
(b)as if -
(i)the contractor; and
(ii)any person referred to in paragraph (a)(ii),
were employees of the principal in relation to matters over which the principal has the capacity to exercise control.
Section 15B deals with 'labour arrangements in general'. It applies to labour arrangements that are not covered by s 15A or s 15C.[14] It relevantly provides:
[14] Mines Safety and Inspection Act 1994 (WA) s 15B(1)(d).
(1)This section applies where -
(a)a person (the worker) for remuneration carries out work for another person (the person mentioned in subsection (1)(a)) in the course of mining operations; and
(b)that person has the power of direction and control in respect of the work in a similar manner to the power of an employer under a contract of employment; and
(c)there is no contract of employment between the worker and that person; and
(d)neither section 15A nor section 15C applies.
(2)Where this section applies, sections 9 and 9A have effect as if -
(a)the person mentioned in subsection (1)(a) were the employer of the worker; and
(b)the worker were the employee of that person,
in relation to any matter that -
(c)comes within section 9; and
(d)is a matter over which that person has the capacity to exercise control.
Section 15D imposes obligations on employers in relation to residential premises occupied by employees. It relevantly provides:

(2)Where -
(a)an employee who is employed in mining operations occupies residential premises that are owned by or under the control of the employee's employer; and
(b)the occupancy is necessary for the purposes of the employment because other accommodation is not reasonably available in the area concerned,

the employer must, so far as is practicable, maintain the premises so that the employee occupying the premises is not exposed to hazards at the premises.
(3)Subsection (2) does not apply if the occupancy is pursuant to a written agreement containing terms that might reasonably be expected to apply to a letting of the residential premises to a tenant.

Section 15E imposes penalties for breaches of s 15D. It relevantly provides:
(1)If an employer contravenes section 15D(2) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.
(2)If -
(a)an employer -
(i)contravenes section 15D(2); and
(ii)by the contravention causes the death of, or serious harm to, an employee occupying premises as mentioned in that section;
and
(b)subsection (1) does not apply,
the employer commits an offence and is liable to a level 3 penalty.
(3)If -
(a)an employer contravenes section 15D(2); and
(b)neither subsection (1) nor subsection (2) applies,
the employer commits an offence and is liable to a level 2 penalty.

The insertion of s 15C

Section 15C of the MSI Act was inserted in 2004 by way of the Mines Safety and Inspection Amendment Act 2004 (WA). This amending Act was produced as a result of two reports by former Australian Industrial Relations Commissioner Robert Laing. The first report was delivered in 2002 and reviewed the Occupational Health and Safety Act 1984 (WA). The second report was delivered in 2003 and reviewed the MSI Act.
The 2003 report recommended extending general employment protections to the growing area of alternative employment arrangements. The report recommended that the MSI Act be amended to:[15]
·extend coverage to a range of alternative arrangements that may currently fall outside both the traditional employer/employee relationship and the principal/contractor arrangement provided for under the Act. In particular, the Act should provide employee entitlements to persons who are employed under labour only arrangements and subject to the direction and control of employers or principals;
·clarify its intent and to make clear that an employer's duties under s.9 apply to both labour hire firms and principals in relation to matters under the respective control of each party.
[15] Robert Laing, Review of the Mines Safety and Inspection Amendment Act 2004, Final Report (2004) 89.

Principles of statutory construction

The focus of statutory construction is on the text, context and purpose of the provision.
In SZTAL v Minister for Immigration and Border Protection,[16] Kiefel CJ, Nettle and Gordon JJ said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] ‑ [71]; 72 ALJR 841; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; 83 ALJR 1152). Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; 71 ALJR 312). This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[16] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
As their Honours noted, statutory context is considered in the first instance of construing a provision. In CIC Insurance Ltd v Bankstown Football Club Ltd,[17] Brennan CJ, Dawson, Toohey and Gummow JJ held that the modern approach to statutory interpretation:
uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
[17] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408.
There was dispute between the parties as to the emphasis to be given to the objects of the legislation as opposed to the specific purpose of the provisions.
The appellant submitted that a construction of s 15C that would promote the express statutory objects of the MSI Act must be preferred to a construction that would not. It said that in interpreting an Act which is directed to guarding against accidents and to the preservation of human life, the court should endeavour to carry out the objects of the legislation as far as the language of the Act will reasonably permit.[18]
[18] Appellant's Submissions [12] ‑ [13].
The respondent submitted that while the general purpose of the MSI Act is relevant it is of limited assistance where there is a specific purpose to a particular provision of the legislation.[19] I agree with this submission.
[19] Respondent's Submissions [69] ‑ [70].
In the interpretation of an Act a balance has to be struck between purposes that are general and those that are specific to a particular provision. In Carr v Western Australia,[20] Gleeson CJ explained that a purposive approach:
may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.
To take an example removed from the present case, it may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation has to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose.
[20] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [5] ‑ [6].

This is a case where, as the respondent submitted, a specific purpose sought to be achieved by a particular provision is more probative than broad statements that do not meaningfully assist in construing the provision. The specific purpose of s 15C of the MSI Act is to create a provision that captures labour hire arrangements. As the Minister stated in his Second Reading Speech, the Mines Safety and Inspection Amendment Act introduced 'provisions to deal specifically with labour hire' and expanded the general duties of care to 'close the gaps' particularly with respect to the labour hire industry.[21]
[21] Western Australia, Parliamentary Debates, Legislative Assembly, 25 August 2004, 5584c (Mr Clive Brown, Minister for State Development).
Where a particular provision has a specific purpose then regard must be had to that specific purpose rather than the general purpose of the Act. The general purpose of the Act cannot be used to overturn an interpretation that arises from the text and context of a particular section in the Act. If the appellant has charged under the wrong section it cannot justify that decision by reference to the general objects of the Act.

The agreement between CNGC and Hampton

The agreement identifies CNGC as 'the principal' and Hampton as 'the contractor' for the purposes of the agreement. The relevant terms of the agreement are as follows.
By cl 1.2 the agreement commences on 1 August 2013 and continues until CNGC terminates the agreement by giving Hampton 28 days' notice of termination. This clause is subject to cl 1.3 which provides an option for the contractor to terminate the agreement.
By cl 1.1 Hampton agrees to provide the services as described in item B of s 2 of the agreement to CNGC ('the Services') at the site described in item A of s 2 of the agreement ('Site') on the terms and conditions set out in the agreement.
Section 2 of the agreement provides the general terms and conditions of mining equipment hire. The relevant terms are as follows:
Contractor to supply equipment and staff based on hour rates Section 2, Item 2.0 Equipment hire rates.
Equipment hours to be invoiced based on actual SMU used.
Contractor to supply in equipment hours rates, equipment hire, operator, fuel, tyres & tracks, GET, servicing, repairs & maintenance, oils and lubricants.
Principal at no cost to the contractor supply suitable accommodation and messing for staff as per manning schedule.
Clause 4 deals with the contractor's personnel. Clause 4.1 provides that Hampton shall engage such employees or other personnel ('Contractor Personnel') as are necessary for the proper performance of the Services and who are skilled and experienced in their respective trades. Clause 4.2 provides that not less than 48 hours before any Contractor Personnel commences part of the Services, Hampton shall submit to CNGC the name and qualifications of the Contractor Personnel. Provided that CNGC acts reasonably, it shall have the right to:
(a)interview and evaluate the qualifications of any Contractor Personnel; and
(b)require the replacement or removal of any such Contractor Personnel who in the opinion of [CNGC], acting reasonably, is unsuitable to be engaged in the performance of the Services.
Clause 6 deals with the contractor's plant and equipment. Clause 6(a) provides that unless otherwise agreed, in performing the Services Hampton shall supply the plant and equipment specified in annexure A of the agreement. Annexure A relevantly provides:
(3)Productivity (Dig Rates)
(a)Hampton to supply competent trained skilled operators.
(b)Hampton to pro-rata hours against scheduled dig rates if during free flowing mining scheduled dig rates are not achieved.
(c)NGL to supply weekly monthly schedule of works.
(d)Hampton/NGL to agree on work schedule and productivity targets.
…
(6)Equipment Maintenance and Condition of Equipment
(a)Equipment to be presented on in good mechanical order.
(b)Equipment to be presented on site clear and free of dirt, weed free.
(c)Equipment mechanical inspection sheet to be forward to NGL 24 hours prior to mobilisation.
(d)Adequate critical spares on site including grease & lubricants.
(e)Minor & Major services to be completed as per Hampton maintenance schedule.
(f)Preventative maintenance scheduled and submitted to NGL weekly.
(g)Skill trained Maintenance crew on site.
(h)Adequate tooling and equipment on site at all times.
(i)Additional back up Kalgoorlie main workshop.
Clause 6(a) is subject to cl 6(b). Clause 6(b) provides that CNGC will provide, at no cost to Hampton, fuelling facilities and workshops for Hampton's plant and equipment at the Site and offices and communication equipment and facilities at the Site which Hampton requires to perform the Services.

Merits of the appeal

Ground 1

By ground 1 the appellant contends that the learned magistrate erred in law and fact in finding that Hampton was not an agent within the meaning of s 15C(1) of the MSI Act.
The prosecution relied on s 15C(2) of the MSI Act to assert that CNGC was liable as an employer by virtue of the 'labour hire arrangement' between CNGC and Hampton whereby work was carried out for remuneration by a worker (Mr Harris) for a client (CNGC) of an agent (Hampton) in the course of mining operations carried on by the client.
Section 15C(1) provides that 'agent' means a person who carries on a business of providing workers to carry out work for the clients of a person. It includes a group training organisation as defined in s 7(1) of the Industrial Relations Act.
The magistrate's reasons in relation to whether Hampton was an agent for the purposes of s 15C of the MSI Act are as follows:[22]
[22] Reasons for Decision [58], [61], [64], [66] ‑ [68], [70].
The definition of 'agent' invites an assessment of the relationship between the agent and the clients that must be broader in focus than the relationship between, in this case, Hampton and CNGC. Whilst the definition does not require a person to exclusively or predominantly carry on a business of providing workers, the focus of the definition is on the services provided by the agent rather than the relationship with a particular client. Reference to the plural 'for clients' reinforces that focus.
…
In my view … Hampton's business model is contracting with companies to provide mining, earthworks and transportation services. In order to perform those services it provides not only plant and equipment but workers to operate the plant and equipment together with project management and supervision to ensure the services are performed in accordance with any relevant contract or agreement.
…
No part of Hampton's business model was predicated upon providing workers to clients in order for those workers to then be subject to the direction and control of the client.
…
It is clear that the definition of agent does not require uniformity of a business model of providing workers, nor does it require the agent be limited to providing workers as opposed to workers and equipment, for example, or the responsibility for servicing that equipment.
However, in my view, in light of the definition of agent, it would be too generous an interpretation of that definition to conclude on the facts of this case that Hampton carried on a business of providing workers to carry out work for clients. On a broader view, every contractor, unless self-employed, uses workers to carry out work for clients. The ultimate beneficiary of that work is most often the client/principal.
… The definition of agent is intended to capture what might be regarded as the essential business of providing workers to clients, for the carrying out of work for the client, under the supervision and control of the client … [T]he terminology of carrying on a business of providing workers to carry out work for clients is consistent with the worker working for the labour hire host, not the labour hire agency.
…
… Reference to a group training organisation as part of the definition of agent is another supplemental indicator of what the section is designed to capture, that is, the business model of providing workers to clients for the carrying out of work for the client, under the supervision and control of the client.
The terms of the agreement make it clear that the relationship between CNGC and Hampton was that of principal and contractor in the ordinary sense. It was an agreement for the provision of services consisting of equipment provided by Hampton and operated by staff provided by Hampton. It was not an independent agreement for Hampton to provide staff to operate equipment belonging to CNGC or any other party.
To fall within the definition of agent under s 15C(1) of the MSI Act, CNGC must carry on a 'business' of providing workers to carry out work for it clients. Carrying on a business suggests a practice that involves some degree of repetition and regularity. There is no evidence to establish that Hampton carried on the business of providing workers to carry out work for its clients. It was not a labour hire business. Rather, Hampton was a contractor who provided services and as part of the provision of those services provided equipment operated by its employees.[23]
[23] Reasons for Decision [61].
On the facts of this case, I would have expected a prosecution to have been brought on the basis of s 15A of the MSI Act which deals with contract work arrangements. A prosecution brought under s 15A could reasonably present the case that CNGC, as principal, in the course of mining operations engaged a contractor, Hampton, to carry out work for CNGC. Section 15A(2) would apply so that s 9 and s 9A have effect as if CNGC were the employer of Mr Harris.
The appellant submitted that the magistrate erred in law and fact for three reasons. First, that the magistrate impermissibly supplemented or read additional words into the definition of agent in s 15C(1). The appellant asserted that the magistrate's construction of s 15C(1) was that for an entity to be an agent the workers provided to a client must have been under the client's 'direction and control'.[24]
[24] Appellant's Submissions [24].
I am not convinced that the magistrate was supplementing or reading additional words into the definition of 'agent' in s 15C(1). It seems that the use of the words 'direction and control' in the magistrate's reasons was directed to explaining the nature of a labour hire arrangement.
Second, the appellant submitted that the magistrate drew a false dichotomy between a worker carrying out work for a client or an agent. The appellant said that the magistrate placed some emphasis on the fact that the workers must be working for the labour hire host, not the labour hire agency. That the magistrate used this terminology, the appellant argued, suggests that he impermissibly, was influenced by pre‑conceived notions of what constitutes a labour hire business.[25]
[25] Appellant's Submissions [34] ‑ [36].
I do not accept that the magistrate drew a false dichotomy between a worker carrying out work for a client or an agent. The words 'labour hire arrangement' do not draw their entire meaning from the MSI Act any more than 'employer' or 'employee'. The definition of 'labour hire arrangement' in s 15C(3) of the MSI Act has an ordinary meaning. One would expect that if a person was working pursuant to a labour hire arrangement, they would be subject, at least in part, to the direction of the client.
Third, the appellant submitted that the magistrate incorrectly concluded that s 15A and s 15C of the MSI Act are mutually exclusive.[26] The appellant submitted that there is nothing in the text, context or purpose of the MSI Act which supports an argument that s 15A and s 15C are mutually exclusive. However, the appellant acknowledged that each provision must have at least some independent work to do.[27]
[26] Appellant's Submissions [40].
[27] Appellant's Submissions [42].
A court construing a statutory provision must strive to give meaning to every word of the provision. In Project Blue Sky Inc v Australian Broadcasting Authority,[28] the plurality said:
[I]t was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent'.
[28] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71].
In the most general sense, an employee of a contractor carries out work for the clients of the contractor. However, if s 15C is given such a wide interpretation then there would be no purpose in s 15A and s 15B.
Sections 15A and 15C are mutually exclusive. If they are not mutually exclusive then the words of either s 15A or s 15C are otiose. The text, purpose and context, of s 15A, s 15B and s 15C indicate that s 15 and s 15C are mutually exclusive.
Section 15A applies where a principal in the course of mining operations engages a contractor 'to carry out work for the principal'. The terms 'principal' and 'contractor' are well understood. The use of these terms in s 15A is indicative of the type of relationship sought to be captured by the provision, namely, the relationship between principal and contractor. This relationship involves a principal engaging the contractor to perform work for a fee. The contractor performs the work through the use of labour that the contractor controls.
Section 15C applies where under a 'labour hire arrangement' work is carried out by a worker for client of an agent in the course of mining operations. The terminology of s 15C sits in contrast with the language of s 15A. The provision seeks to capture the relationship between an 'agent' and the 'client of an agent'.
Section 15B applies where a worker carries out work for 'another person' that 'has the power of direction and control in respect of the work in a similar manner to the power of an employer under a contract of employment' but where no such contract of employment exists. The section applies when neither s 15A or s 15C applies. Section 15B accordingly serves as a catch-all provision.
Under both s 15A and s 15C, the worker will be in an employment or contractor relationship with the agent or contractor and have no relationship with the principal or client. However, the focus of the provisions is different. Section 15A focuses on the contractor carrying out work for the principal while s 15C focuses on the agent's workers carrying out work for the client. The difference in language and emphasis reveals a legislative intent for the provisions to capture different relationships where the work being performed under each has a different character. The provisions are not referring to the same types of relationships.
To engage the operation of s 15C the worker must be carrying out work for the client of the agent. Section 15C looks to the business of the agent as providing workers to carry out work for its clients of the agent. It strains the ordinary use of the language to suggest that the relationship between principal and contractor could be the business of the contractor providing workers to the client. It simply does not describe the relationship.
Further, s 15A imposes additional duties that do not exist for s 15B and s 15C. Section 15A(4)(b) provides that the principal owes 'the duties of an employer under section 15D(2)'. Section 15D imposes duties for employers in relation to residential premises owned by or occupied by its employees. Section 15D(2) relevantly requires that the employer 'maintain the premises so that the employee occupying the premises is not exposed to hazards at the premises'.
If an employer contravenes s 15D(2) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.[29] An individual is liable to a fine of $550,000 for a first offence or a fine of $680,000 for a subsequent offence.[30] A corporation is liable to a fine of $2.7 million for a first offence or $3.5 million for a subsequent offence.[31]
[29] Mines Safety and Inspection Act 1994 (WA) s 15E(1).
[30] Mines Safety and Inspection Act 1994 (WA) s 4A(4)(a).
[31] Mines Safety and Inspection Act 1994 (WA) s 4A(4)(b).
There is a significant difference between the employer obligations of a principal under s 15A and the employer obligations of an agent and client under s 15C. It is difficult to see how s 15A and s 15C could not be mutually exclusive given the substantial obligations imposed under s 15A when those obligations do not apply under s 15C.
To construe the legislation in a way that permits a particular labour arrangement to fall within s 15A and s 15C would have improbable consequences for their practical operation.
The protective purpose of the MSI Act cannot be used to override the specific purpose, text and context of the provisions.
Having regard to the terms of s 15A, in relying on s 15C(1) the prosecution was faced with trying to fit a square peg into a round hole. The prosecution case depended on establishing that Hampton was a person who carries on a business of providing workers to carry out work for its clients.
Why the prosecution was brought under s 15C rather than s 15A has not been explained.

Grounds 2 and 3

It is unnecessary to deal with grounds 2 and 3 because I have concluded that the magistrate did not err in relation to his finding that Hampton was not an agent.

Conclusion

Accordingly, I make the following orders:
(1)Leave to appeal is granted on ground 1.
(2)Leave to appeal is refused on grounds 2 and 3.
(3)The appeal is dismissed.
I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
24 MARCH 2022