Tobiassen v Reilly
[2009] WASCA 26
•29 JANUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TOBIASSEN -v- REILLY [2009] WASCA 26
CORAM: STEYTLER P
MILLER JA
NEWNES AJA
HEARD: 6 NOVEMBER 2008
DELIVERED : 29 JANUARY 2009
FILE NO/S: CACR 82 of 2008
BETWEEN: SVEIN GERHARD TOBIASSEN
Appellant
AND
PETER JOHN PATRICK REILLY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :REILLY -v- TOBIASSEN [2008] WASC 6
File No :SJA 1122 of 2005
Catchwords:
Occupational health and safety - Occupational Safety and Health Act 1984 (WA) - Section 21(1), s 23(3a)(a) - Meaning of 'practicable' - Section 21(1) - Meaning of 'work in which he was engaged' - Section 22(1) - Meaning of 'control of the workplace' - Application of s 23(3a) - Whether appellant was 'self-employed person' - Principles to be applied
Legislation:
Mines Safety and Inspection Act 1994 (WA), s 9(1)(a)
Occupational Health, Safety and Welfare Act 1986 (SA), s 19(1)
Occupational Safety and Health Act 1984 (WA), s 21(1), s 22(1)(a), s 23(3a)
Occupational Safety and Health Regulations 1996 (WA), reg 3.88(1)(b)
Result:
Appeal allowed in part
Category: A
Representation:
Counsel:
Appellant: Mr M H Zilko SC & Mr J T Bishop
Respondent: Mr G T W Tannin SC & Ms L A Eddy
Solicitors:
Appellant: Hotchkin Hanly
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Australian Mutual Provident Society v Allan (1978) 18 ALR 385
Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199
Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998)
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597
Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers [2004] WASCA 312
R v ACR Roofing Pty Ltd [2004] VSCA 215; (2005) 11 VR 187
R v Associated Octel Ltd [1994] 4 All ER 1051
R v Foster (1952) 85 CLR 138
Reilly v Devcon Australia Pty Ltd [2008] WASCA 84
Reilly v Tobiassen [2008] WASC 6
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561
JUDGMENT OF THE COURT: The appellant appeals, with leave, against his conviction on three charges under the Occupational Safety and Health Act 1984 (WA) (the Act) and two charges under the Occupational Safety and Health Regulations 1996 (WA) (the Regulations).
The appellant was acquitted of each of the charges in the Magistrates Court but an appeal by the respondent to a single judge of this court was successful and the appellant was convicted of each of the charges: Reilly v Tobiassen [2008] WASC 6. It is against the latter decision that this appeal is brought.
Background
The charges of which the appellant was convicted arise out of a fatal accident on 18 September 2002 in which Mr Desmond Kelsh died as a result of the collapse of a building under construction in Myaree, south of Perth.
The building under construction consisted of a series of showrooms. The lessor of the land and the developer was Glenpoint Nominees Pty Ltd (Glenpoint). Devcon Australia Pty Ltd (Devcon) was the project manager and responsible for the overall construction at the site. Devcon arranged for the supply of labour and materials for the construction, although Glenpoint paid for the labour and materials supplied.
The Builders' Registration Act 1939 (WA) required that the building work be 'managed and supervised' by a registered builder. The appellant was appointed by Devcon as the registered builder for that purpose. The contractual duties of the appellant were set out in an agreement dated 1 July 2002 made between the appellant and Devcon. Under the agreement, among other things, the appellant (defined as the 'Builder') was 'engaged to actively manage, schedule and supervise the building work' to ensure all trades carried out their work in sequence, and to control the quality of materials and workmanship. He expressly undertook that the building work would be completed in accordance with the plans and specifications.
Mr Kelsh was a rigger and the principal of Kefo Steel Erection & Fabrication Pty Ltd (Kefo), which had been engaged by Devcon to erect the concrete panels and structural steel used in the construction.
The showrooms were being constructed using precast concrete tilt-up panels (concrete panels). The construction process involved a concrete slab being poured and concrete panels then being cast and positioned around the slab. The concrete panels would then be erected to form the walls of the building and structural steel rafters (rafters) would be fixed to the top of the panels. Purlins would then be attached to the rafters and, in turn, the roof would be attached to the purlins.
When the concrete panels were ready to be erected, lifting equipment would be attached to each concrete panel to lift it into a vertical position. Temporary braces would then be fixed to each newly erected concrete panel. Once the concrete panels had been erected on opposite sides of the slab, the rafters, which spanned the distance between them, would be attached to the concrete panels.
Each concrete panel was approximately 10 m in height and 5 m in width. The distance between the concrete panels forming opposing walls was approximately 41 m. The rafters which spanned that distance were in the form of rolled steel joists (or 'RSJs') or I-beams. Each was approximately 60 cm in height and 20 cm in width at the top and bottom, and weighed approximately 5.5 tonnes.
The ends of the rafters were affixed to the concrete panels and each rafter was cross-braced to adjacent rafters. They were fixed in position by a combination of that means and by their own weight.
On 18 September 2002, the concrete panels forming the opposing walls of the building in an area known as unit 3 had been erected and the early stages of installing the rafters had commenced. Several rafters had been placed in position and bolted at each end to the concrete panels. At the time of the accident the deceased and his assistant, Mr Hunt, were working on one of the rafters. They were standing on the rafter, which was some 10 m above the floor. At that stage, the rafter could not be cross‑braced to any other rafter as the adjacent rafters were still to be installed.
By some process which is not entirely clear, one end of that rafter and the ends of two others started to turn or roll due to torsional forces, causing those rafters to break free of the concrete panels and fall to the ground. That left the concrete panels unsupported and some fell inwards onto the concrete slab. Mr Kelsh fell to the floor when the rafter on which he was standing collapsed. He suffered fatal injuries when a concrete panel fell and struck him.
The respondent contended, in effect, that the method of erecting the concrete panels and rafters was unsafe. The method of construction used meant that until the rafters were cross-braced there was inadequate support for the structure and there was a risk that it might collapse.
The prosecution
The appellant was prosecuted by the respondent, who is an officer of WorkSafe Western Australia authorised for that purpose by the WorkSafe Western Australian Commission. The appellant was charged as follows:
(1)Between the 19th day of August 2002 and the 19th day of September 2002 at Myaree … being a self‑employed person, failed so far as was practicable to ensure that the safety of persons not being his employees was not adversely affected as a result of the work in which he was engaged, in contravention of section 21(1) of the [Act] and, by that contravention, caused the death of a person; contrary to section 21(3) of the [Act].
(2)Between the 19th day of August 2002 and the 19th day of September 2002 at Myaree … being a person who constructed a building for use at a workplace, failed so far as was practicable to ensure that the construction of the building was such that persons who properly constructed the building were not, in doing so, exposed to hazards, in contravention of section 23(3a)(a) of the [Act] and, by that contravention, caused the death of a person; contrary to section 23(5) of the [Act].
(3)On the 18th day of September 2002 at Myaree … being a person who had control of a workplace where persons who were not his employees worked or were likely to be in the course of their work, failed to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards, in contravention of section 22(1)(a) of the [Act]; contrary to section 22(4) of the [Act].
(4)Between the 19th day of August 2002 and the 16th day of September 2002 at Myaree … being a self‑employed person at a construction site where concrete tilt‑up panels were to be cast on the site and tilted or lifted into place, failed to ensure that the casting of the panels was in accordance with the requirements of paragraph 6.1 of AS3850.1 in that he failed to ensure that the elements were manufactured in accordance with the shop drawings; contrary to regulation 3.88(1)(b) of the [Regulations].
(5)Between the 26th day of August 2002 and the 19th day of September 2002 at Myaree … being a self‑employed person at a construction site where concrete tilt‑up panels were to be cast on the site and tilted or lifted into place, failed to ensure that the erection of the panels was in accordance with paragraph 7.6(a) of AS3850.1 in that he failed to ensure that elements were braced in accordance with shop drawings; contrary to regulation 3.88(1)(b) of the [Regulations].
Extensive particulars were provided of each charge, but it is unnecessary to set those out.
A common element of the first three charges was that practicable measures could have been taken in relation to a foreseeable hazard, that hazard being the risk of the collapse of the rafters and the concrete panels while the building was in the course of construction.
The practicable measures which the respondent asserted should have been taken, as set out in the particulars to these charges, were that the appellant should have ensured:
(a)there was adequate lateral restraint of the rafters in the unit 3 area at the site during, and following, the erection of the rafters; and
(b)the concrete panels to which the rafters in the unit 3 area at the site were affixed were properly constructed.
In relation to the third charge, it was further alleged that the appellant should have ensured that 'the bases of the tilt up panels had been properly secured and braced'.
As to the element of the first charge that the safety of others was adversely affected as a result of 'work in which [the appellant] was engaged', the respondent alleged that 'the [appellant] was engaged in work which involved the discharging by him of the role of the contracted registered builder for the project which involved the construction of the building under construction'.
In relation to the second charge, it was alleged that the 'building for use at a workplace' was the building being constructed at the site.
After a 12 day trial in the Magistrates Court, on 11 October 2005 the charges were dismissed.
The findings at first instance
On the first charge, the magistrate held, relevantly, that the appellant did not fail to ensure, so far as practicable, that the safety of the Kefo employees was not adversely affected as a result of work in which he was engaged. His Honour found that it was not practicable for the appellant to have ensured there was adequate lateral restraint of the rafters as, while a professional engineer would have known of the risks associated with a lack of lateral restraint and how to deal with them, those were not matters of which the appellant was aware and they were not matters of which a registered builder would reasonably have been expected to be aware.
In addition, the magistrate found that the work undertaken by Kefo was not work in which the appellant was engaged. His Honour found that the risk of the collapse of the rafters and the concrete panels due to torsional forces and the absence of lateral restraint on the rafters did not arise out of the appellant's work as the registered builder for the project. He concluded that the appellant could not have been expected to know of the risks associated with a lack of lateral restraint and the potential for torsional forces to lead to the collapse of the rafters and panels. The magistrate also found that the appellant was not self-employed but was an employee of Devcon.
On the second charge, the magistrate held, for the same reasons as the first charge, that the appellant did not fail to ensure, so far as practicable, that the Kefo employees were not exposed to hazards. He also held that the appellant was not a person who was 'constructing a building for use at a workplace' and, further, that the provision of adequate lateral restraint to the rafters was not part of 'constructing a building for use at a workplace'.
On the third charge, the magistrate held, again for the same reasons as the first charge, that the appellant did not fail to ensure, so far as practicable, that the Kefo employees were not exposed to hazards. The magistrate further held that the appellant did not relevantly have control of the workplace. His Honour found that the degree of control required before an offence could be established was such as to enable the appellant to ensure safety by 'guaranteeing, securing or making certain' the situation and that this must be a degree of control sufficient to allow the direction of action or the giving of commands associated with an ability to compel corrective action to secure safety. The magistrate concluded that the provision of adequate lateral restraint of the rafters was a matter in respect of which the appellant had no relevant expertise and about which he was not in a position to direct Kefo or its employees.
On the fourth charge, the magistrate held that the appellant played no role in the failure to use reinforcing bars. It was the responsibility of Devcon's site supervisor, Mr Fuller, to ensure that the casting of the panels was in accordance with the shop drawings. He further held that the appellant was not self-employed but was employed by Devcon.
The magistrate made similar findings on the fifth charge, concerning the failure to ensure that the concrete panels were braced in accordance with the shop drawings.
The respondent appealed to the Supreme Court against each of those findings. On 18 January 2008, EM Heenan J upheld the appeal and entered convictions on each charge.
The findings of EM Heenan J
In relation to the first three charges, the primary judge held that the magistrate had erred in concluding that it was necessary for the respondent to show, not simply that there was an objective state of knowledge of the existence of the risks of collapse of steel rafters in the position of these rafters due to torsional forces, but that that knowledge was possessed by the appellant or to be expected of a person in the appellant's position.
The primary judge said:
Far from limiting the objective state of knowledge to the subjective state of knowledge of the particular builder (in the present case) or persons in comparable positions, the legislation, in my view, casts an obligation upon all persons, upon whom comparable duties are imposed, to acquaint themselves with practicable measures existing in the industry for the maintenance of safety and the avoidance of hazard … This is consistent with the policy of the Act which, in my view, is intended to achieve a situation that if, objectively speaking, there is known within an industry that there are hazards of a particular kind which may be injurious to the health and welfare of persons on worksites, and that there are means available of avoiding or reducing those hazards, then, having regard to factors such as the degree of risk, the means of removing or mitigating the risk and the availability, suitability and the cost of the means to reduce the risk, the decision about practicability will then be taken in a balanced and objective fashion.
The crucial point of this statutory language, however, is that it lends no support at all to a view of practicability which is associated with a limited knowledge by some person within the industry who, by hypothesis, is oblivious to the existence of objective knowledge within the industry which identifies the risk and suggests means of addressing it. Certainly, there is a balancing judgment to be made, having regard to the degree of risk involved, the means available of reducing the risk and the associated costs, but that balancing exercise needs to be performed once it is established that there is an objective state of knowledge within the industry which exposes the hazard and suggests a means of coping with it. That state of knowledge is not limited to occasions when the risk is known and appreciated at lower levels, or by the individual on whom the duty is cast.
As framed, the obligation requires persons on whom such duties are cast to acquaint themselves with the objective state of knowledge within the industry and, as implied by Lord Upjohn in his remarks in Nimmo v Alexander Cowan & Sons Ltd, to take advice from experts and others to supplement his or her own appreciation of the situation. Failure to do that does not displace the existence of an objective state of knowledge or excuse a failure to perform the duty if, otherwise, it were practicable to perform it. This is, if I may say so with respect, the essential error which pervades this aspect of the decision at first instance; namely, to associate the objective state of knowledge with the scope of knowledge actually possessed or to be expected of such a builder. In my view, that significantly understates the extent of the statutory and regulatory duties here under consideration …
Consequently, in the present prosecutions, once the learned magistrate was satisfied, as he was, that objective knowledge did exist within this industry about the hazard presented by torsional forces operating on steel rafters without adequate lateral restraint, and that means were available of dealing practicably with that risk, it was wrong to find that the measures which the prosecution asserted should have been taken by the respondent, in the first, second and third charges, were not practicable. [119] ‑ [124]
The primary judge addressed the question of whether, in relation to the first charge, the safety of persons was adversely affected as a result of work in which the appellant was engaged.
The primary judge considered ([85] - [86]) that the magistrate had taken an unduly narrow view of the work in which the appellant was engaged, so as to exclude knowledge of, and therefore responsibility for, the risk of collapse by limiting avoidance of the risks or the taking of precautions to risks of which the appellant had knowledge. The fact that the details and the sequence of erection of the rafters were left largely to Kefo, at the direction of Mr Kelsh, did not detract from the appellant's overall responsibility to supervise and manage the works. Consequently, the relevant omission - the failure to ensure that adequate steps were taken to provide lateral support to the rafters - was within the scope of the appellant's work on the site.
On the question, in relation to the third charge, of whether the appellant had control of the workplace, his Honour said:
… it is evident that the conclusion reached by the learned magistrate involves the combination of at least two different concepts in one practical setting - namely, personal knowledge or acquaintance of the risk or hazard which should be averted or diminished by protective action and, secondly, immediate de facto power to compel and enforce the establishment and maintenance of a system of work which would reduce or eliminate those hazards.
The analysis adopted by the learned magistrate proceeds on the footing that there can only be one person in 'control' of the workplace in the relevant sense, and for that control to exist it must contain an element of knowledge, skill and experience and the ability to recognise the need for corrective action and the power to enforce it. No doubt, if all those features existed, it could be rightly said of a person who possessed those attributes, that he or she was in control of the particular situation. However, to conclude this does not exclude the possibility that someone else may also have control, even if it be of broader scope or at a higher level of responsibility. For example, a power to order a subcontractor to cease work or to leave the site or to suspend operations, possessed by a supervisor or, for that matter, by the builder, would be to have control of the workplace because, through the exercise of that power, the conduct - at least the non-conforming conduct - of the contractor or its workers can be controlled.
The word 'control' is not specifically defined by the Act but in s 22(3), as it then was, it is provided that:
'A reference in this section to a person having control of any workplace or means of access to or egress from a workplace is a reference to a person having control of that workplace or that means of access or egress in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not).'
…
Having regard to the purpose of the Act, which is to 'promote and improve standards for occupational safety and health', I am satisfied that the concept of control of a workplace should be approached in this sense, so that all persons who share in the control of building operations or work at a worksite - even though the areas of control may be overlapping, or may be at different levels in a hierarchy of control - have the obligation to exercise that control by taking practical measures to ensure that the workplace does not expose other persons on site to hazards. [90] - [95]
The primary judge then referred ([96]) to the finding of the magistrate that in order to determine who had 'control' for the purposes of s 22(1)(a) of the Act it was necessary to examine the particular arrangements in the area of the site concerned, and that it was the deceased who was actually in control of the erection process at unit 3. His Honour continued:
For reasons already canvassed I consider this is an erroneous approach to the direct interpretation of the provisions of this Act and, in particular, to the concept of 'control' within s 22(1)(a). The policy of the legislation is to establish broad and omnipresent obligations to install, enforce and carry out safe working practices for all persons involved in a workplace where hazardous activities may be involved. The degree of obligation and the nature and extent of the duty will vary according to whether the influence of the particular person who bears the designated duty is greater or less. However, making due allowances for the fact that the nature and extent of such duties may vary as between employers, employees, constructors and others, there is still no reason to approach this legislation on the assumption that there are no concurrent or overlapping duties by the persons or categories of persons upon whom the statute has placed obligations.
The fallacy which, with respect, I find in the submissions of the respondent, and their acceptance by the learned magistrate, is the conclusion that in any particular instance it must be possible to establish that it is 'X' who has the control of this workplace or section of the workplace rather than 'Y' or 'Z' and, accordingly, 'Y' cannot be liable under s 22(1)(a) even though he may have some different or smaller degree of control over the workplace than 'X'. There is no reason in logic or in policy why the concept of control should be so limited or be so exclusive. Rather, the policy of the legislation prompts an expansive meaning to be given to that term so that any person whose influence amounts to 'control' has a duty to act, so far as he, she or it can, to ensure safe working practices. Indeed this expansive interpretation is positively signalled by the section itself because s 22(7), already mentioned, expressly excludes an employee from the operation of the section. This signals that, but for that exclusion, an employee who does have a measure of de facto control would otherwise bear the duties which the section imposes. In my view, within the context of s 22(1)(a), 'control' means the ability of any person to whom the section applies (that is, who is constructing the building and who is not an employee) to use the influence associated with that control to install, maintain and enforce appropriate safe working practices and to avoid ascertainable hazards so far as is practicable.
The terms of the appellant's employment, his powers and duties under the Builders' Registration Act and his associated ability to give directions, means that this appellant did have control over this workplace to ensure that all others working at the site, including sub‑contractors, complied with the terms of their contracts and the statutory and other duties to ensure that safe working measures and precautions were taken in the performance of their work. The appellant had the power to require the riggers to perform work to acceptable standards and could, if he had wished, order a halt or suspension of their operations until they did so. He never attempted to do this. However, it cannot be doubted that he had the power to do so, and that amounts to the influence or 'control' of which the section speaks.
[The appellant] visited the site daily, he was able to give directions to the site supervisor of Devcon, Mr Fuller, and it was his role to supervise the overall operations. His power to do this was never contested in the actual conduct of the construction activities at the site and in my view there was no basis for concluding that, in effect, the appellant was powerless to ensure that appropriate safety measure were taken by others on the worksite to see to, so far as was practicable, the elimination of hazards. Furthermore, s 22(1) of the Act imposes such a duty upon any person who has 'to any extent' control, of a workplace, therefore encompassing 'various degrees of control': see Morrison v De Bono [2005] WASC 271; (2005) 147 IR 454 [12] (Le Miere J). [97] ‑ [100]
His Honour concluded ([102]) that the appellant did have the relevant control of the workplace.
In relation to the second charge, the primary judge concluded that the appellant was, within the meaning of s 23(3a)(a) of the Act, a person who constructed a building for use at a workplace. For reasons we will come to, it is unnecessary to canvass the reasons his Honour gave for that conclusion.
On the fourth and fifth charges, his Honour held ([137] - [138], [144]) that the obligations under the respective regulations were personal obligations of the appellant and could not simply be devolved upon the site supervisor. The appellant had failed to ensure that the relevant work was carried out in accordance with the shop drawings. That task had been left to Mr Fuller but the appellant had taken no steps to ensure that Mr Fuller fulfilled that task.
His Honour also held ([82]) that the magistrate erred in finding that the appellant was not self-employed but was an employee of Devcon. The primary judge found that on a proper analysis of the relationship between Devcon and the appellant, the magistrate should have found that it was a relationship of principal and independent contractor and that the appellant was self-employed.
The primary judge found that the charges had therefore been made out. His Honour set aside the decision of the magistrate and entered a conviction on each charge.
The appellant has appealed to this court against that decision.
Grounds of appeal
The grounds of appeal are as follows:
1.In respect of the first charge, the learned judge erred in law in finding that:
(a)the charge had been established by the respondent to the requisite standard;
(b)the obligation imposed on the appellant by s 21(1) of the Act to ensure, so far as practicable, that the safety or health of other persons at the workplace was not adversely affected by work in which he was engaged, required the appellant to inform himself of the means necessary to ensure there was adequate lateral restraint of the steel roof beams erected by Kefo, a specialist rigging contractor engaged to carry out that work.
2.In respect of the second charge, the learned judge erred in law in finding that the obligation imposed on the appellant by s 23(3a)(a) of the Act to ensure, so far as practicable, that persons involved in the construction of a building for use at a workplace were not exposed to hazards, required the appellant to inform himself of the means necessary to ensure there was adequate lateral restraint of the steel beams erected by Kefo.
3.In respect of the third charge, the learned judge erred in law in finding that the obligation imposed on the appellant by s 22(1)(a) of the Act to ensure, so far as was practicable, that the persons at the workplace were not exposed to hazards, required the appellant to inform himself of the means necessary to ensure there was adequate lateral restraint of the steel beams erected by Kefo.
4.In respect of the first charge, the learned judge erred in law in finding that the erection of the steel roof beams by Kefo was work in which the appellant was engaged as required by s 21(1) of the Act.
5.In respect of the second charge, the learned judge erred in law in finding that s 23(3a)(a) of the Act applied to the activities of the appellant.
6.In respect of the third charge, the learned judge erred in law in finding that the appellant was a person who had control of the workplace as required by s 22(1)(a) of the Act, when the appellant had neither actual control nor the power to exercise control in respect of the erection of the steel beams and the provision of adequate lateral restraint.
7.In respect of the first, third, fourth and fifth charges, the learned judge erred in law in finding that the appellant was a self‑employed person, when in fact he was an employee of Devcon.
The relevant statutory provisions
The Act has been significantly amended since the time of the alleged offences. The material provisions at that time were as follows:
21 Duties of employers and self-employed persons
(1)An employer or self-employed person shall -
(a)…
(b)So far as is practicable, ensure that the safety and health of a person not being his employee is not adversely affected wholly or in part as a result of the work in which he or any of his employees is engaged.
…
22 Duties of person who have control of workplaces
(1)A person who has, to any extent, control of -
(a)a workplace where persons who are not employees of that person work or are likely to be in the course of their work:
…
shall take such measures as are practicable to ensure that the workplace, or the means of access to or ingress from a workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and ingress from the workplace are not exposed to hazards.
…
(3)A reference in this section to a person having control of any workplace or the means of access to or ingress from the workplace is a reference to a person having control of that workplace or that means of access to or ingress in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not).
…
23 Duties of manufacturers etc
…
(3a)A person who designs or constructs any building or structure, including a temporary structure, for use at a workplace shall, so far as is practicable ensure that the design and construction of the building or structure is such that -
(a)persons who properly construct, maintain, repair or service the building or structure; and
(b)persons who properly use the building or structure, are not, is so doing, exposed to hazards.
There are certain definitions contained in s 3 of the Act which are also relevant. They are:
'hazard' in relation to a person means anything that may result in -
(a)injury to the person; or
(b)harm to the health of a person.
…
'practicable' means reasonably practicable having regard, where the context permits, to -
(a)the severity of any potential injury or harm to health that may be involved and the degree of risk of it occurring;
(b)the state of knowledge about -
(i)the injury or harm to health referred to in (a);
(ii)the risk of that injury or harm to health occurring; and
(iii)the means of removing the risk or mitigating the potential injury or harm;
and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii).
'workplace' means a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self-employed persons work or are likely to be in the course of their work.
The disposition of the appeal
Grounds 1, 2 and 3
The first three grounds of appeal relate to the charges under s 21(1), s 23(3a)(a) and s 22(1)(a) of the Act respectively. In substance, the first charge alleged that the appellant 'failed so far as was practicable to ensure that the safety of persons not being his employee was not adversely affected as a result of the work in which he was engaged'; the second charge alleged that the appellant 'failed so far as was practicable to ensure that the construction of the building was such that persons who properly constructed the building were not, in doing so, exposed to hazards'; and the third charge alleged that the appellant 'failed to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards'.
In respect of these grounds the appellant relied upon the same particulars, namely:
(a)The appellant was a registered builder engaged by [Devcon] in respect of the development of the site in question.
(b)For the purpose of establishing what was practicable prior to the accident, the respondent was required to show that there was an objective state of knowledge held by persons in the position of the appellant, namely, registered builders, about the risk to safety of inadequate lateral restraint of the beam erected by Kefo and the means whereby the risk could be removed.
(c)The evidence of … Mr Van Der Meer, a consulting engineer, which was accepted by the learned magistrate at the trial, was that builders as a group did not know of the risks caused by having inadequate lateral restraint of such beams and that a person would require engineering knowledge to know how to address that risk. Having regard to that evidence, the learned magistrate dismissed the first charge against the appellant.
(d)Notwithstanding Mr Van Der Meer's evidence, the learned judge found that a person charged with a duty under s 21(1) of the Act must inform himself of hazards likely to be encountered and of the means necessary for dealing with them and that the appellant had failed to do so. On that basis, the learned judge found that the first charge had been established.
(e)The learned judge made this finding notwithstanding that Kefo as a specialist rigging contractor had been engaged to erect the steel beams, a task which fell outside the knowledge or expertise of registered builders including the appellant. In those circumstances, it was not reasonably practicable for the appellant to do other than rely on Kefo to carry out the relevant work including provision of adequate lateral restraint of the steel beams.
The appeal in respect of these grounds therefore turns on whether it was necessary for the respondent to show knowledge of the risk to safety of the relevant hazard - in this case, of torsional forces operating on rafters which did not have lateral restraint, causing the collapse of concrete panels during construction - was either known to the appellant or would be known to a reasonably competent person in the position of the appellant, or whether, as the primary judge held, it was sufficient simply that there existed within the building industry knowledge of that hazard and the means of overcoming it, whether or not that knowledge was known to the appellant or would be known to a reasonably competent person in the position of the appellant.
It had been found by the magistrate that when the rafters were placed in position they were susceptible to lateral torsional buckling. To control this, lateral restraint was necessary and should have been applied to the upper flanges of the rafter. If such lateral restraint is applied, the twisting forces on the member are reduced. Such restraint is usually provided by purlins and bracing.
When these rafters were first placed into position they were not supported by purlins, bracing or other connections. The magistrate accepted the expert evidence of two engineers that in that condition the rafters were highly overstressed and were on the verge of collapse. Those engineers gave evidence that only a small external force would have been needed to produce a failure. Neither of the engineers was able to identify with any certainty the precipitating event which caused the collapse, but said that the weight of the two riggers and of the purlins, and the wind loads, thermal effects and the lateral force of another panel which was leaning against one of the supporting panels for the rafter on which the riggers were standing, would have added to the lateral load, thereby increasing the torsional stresses.
The magistrate also accepted the expert evidence that lateral torsional buckling is a phenomenon well known to design engineers and a fundamental concept in the design of steel structures. His Honour found that it was a phenomenon that should have been contemplated and provided for as part of the process of erection. His Honour further accepted the expert evidence that a design engineer would not consider it necessary to make specific provision for, or reference to, the phenomenon, anticipating that it would be recognised and taken into account in the procedures adopted by a competent contractor erecting the building.
The evidence established, however, as the magistrate found, that while a registered builder would have been aware of the need for lateral restraint, he or she would not have known what was required by way of lateral restraint or how it should be applied. There was no evidence that the appellant knew, or that a person in the position of the appellant would have known, of the risk of the collapse of the rafters due to torsional pressures or that there was inadequate lateral restraint of the rafters.
As appears from his finding, the primary judge concluded, however, that the fact that those matters were not known to the appellant, and that they were not matters which a registered builder would be expected to know, was not to the point. His Honour found ([119] - [120]) that it was sufficient that 'there is an objective state of knowledge within the industry which exposes the hazard and suggests a means of coping with it'. The Act required persons on whom the present duties were cast 'to acquaint themselves with the objective state of knowledge within the industry and to take advice from experts and others to supplement his or her own appreciation of the situation'. Accordingly, his Honour found ([121] ‑ [124]), the fact that the relevant knowledge existed within the building industry was sufficient, even if it was confined to qualified engineers, and regardless of the fact that it was not known to the appellant and would not be known to persons in the position of the appellant.
In our opinion, with respect, the primary judge erred in so finding.
In Reilly v Devcon Australia Pty Ltd [2008] WASCA 84, this court considered a complaint against Devcon under s 19(1) of the Act, arising out of the same accident. At the time of the accident, s 19(1) provided (relevantly) that:
An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall -
(a)provide and maintain workplaces, plant and systems of work such that, so far as practicable, his employees are not exposed to hazards;
'Practicable' was defined in the Act in the terms set out earlier.
In Reilly v Devcon, in dealing with the state of knowledge required under s 19(1) of the Act, the court said:
It can be accepted that the 'state of knowledge' referred to in [the definition of 'practicable'] is objective. The fact that a person who is in control of a particular 'matter' affecting safety does not know something that should have been known by a person in that position cannot answer the question whether it was reasonably practicable for that person to have done something about the matter. However, the words 'state of knowledge about … the risk … and means of removing or mitigating the risk … ' encompass not only what is known concerning those matters, but also who might ordinarily be expected to have that knowledge. Consequently, when considering, for the purposes of s 19(1), whether it was reasonably practicable for a deemed employer to have avoided a particular hazard, it would be a relevant consideration that the expert knowledge required to avoid the hazard fell within the province of the specialist contractor which had been engaged to do the work that gave rise to the hazard and outside that of the deemed employer. [60]
The court ([63] - [64]) expressly endorsed what was said in that connection in Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998), a case concerning s 9(1)(a) of the Mines Safety and Inspection Act 1994 (WA) (the MSI Act), a provision for all relevant purposes in the same terms as s 19(1)(a) of the Act.
In Hamersley Iron, Steytler J (as his Honour then was) said that if the obligation to provide a safe workplace requires an employer to call upon expertise that it lacks, then it should do so. But if the employer had relied upon a specialist contractor to perform a task which demonstrably fell within its area of expertise and outside that of the employer, and if the task reasonably appears to the employer (who has knowledge of such matters specified in the definition of 'practicable' as might reasonably be expected to be had by employers of its kind) to have been carefully and safely performed by the specialist contractor, it would ordinarily be difficult to conclude that the employer had breached the duty put upon it by the MSI Act. It would not, in circumstances of that kind, ordinarily have been practicable for it to have done more.
In Reilly v Devcon, the court referred to those observations and said:
That construction seems to us to be appropriate. In our respectful opinion, a construction imposing a greater burden on an employer of the kind there under consideration would be unreasonable and unsupported by the language of the section, read in its context. For the reasons we have given, the same appears to us to be true of s 19(1) of the present Act (read with the definition of 'practicable' in s 3(1)). [65]
In our view, the same considerations apply in respect of each of s 21(1), s 23(3a)(a) and s 22(1)(a) of the Act.
In each of those sections the extent of the specific obligation is limited to what is practicable. It follows from the definition of 'practicable' that the measures which are required to be taken to avoid exposing those at a workplace to injury or harm will only be practicable within the meaning of s 21(1), s 23(3a)(a) and s 22(1)(a) respectively where there exists a state of knowledge about the risk of injury or harm in question occurring and a means of removing or mitigating it. Indeed, that would seem to follow not only from the definition of 'practicable', but because, in any event, it could hardly be said to be practicable for a person to take measures to ensure the safety of those at a workplace in respect of a risk which is unknown.
We do not, however, consider that it is sufficient simply that the risk is known to some class or category of people within the industry, regardless of whether or not it would reasonably be expected to be known to the person on whom the relevant obligation is said to lie under s 21(1), s 23(3a)(a) and s 22(1)(a) respectively (to whom we will refer as the 'responsible person'). If that were sufficient, it would impose upon a responsible person an unreasonable burden and one which is not supported by the language of the relevant provisions, read in their context. In other words, we do not consider that it was intended to impose on a responsible person an absolute obligation to take measures to ensure safety in the workplace in respect of risks of which that person was not, and could not reasonably have been expected to be, aware.
But that does not mean that the obligation to ensure the safety of those at a workplace is necessarily limited to measures in respect of actual risks of which the responsible person is, or ought reasonably to be, aware.
Where, as in this case, a task requires some expertise that the responsible person does not have, their obligations under s 21(1), s 23(3a)(a) and s 22(1)(a) respectively to ensure the safety of others will require that person to ensure that the relevant expertise is brought to bear on the task. What is required in that respect in any particular case will depend upon the facts of the case.
But, as this court concluded in Reilly v Devcon [64], in relation to s 19(1) of the Act, where reliance is placed upon a specialist contractor to perform a task which demonstrably falls within its area of expertise and outside that of the responsible person, and if the task reasonably appears to the responsible person (who has knowledge of such matters specified in the definition of 'practicable' as might reasonably be expected of a person in their position) to be carefully and safely performed by the specialist contractor, it would ordinarily be difficult to conclude that the responsible person had breached the duty put upon them by s 21(1), s 23(3a)(a) and s 22(1)(a) of the Act respectively. That is because in circumstances of that kind it would not ordinarily have been practicable for the responsible person to have done more.
As Stuart-Smith LJ said in R v Associated Octel Ltd [1994] 4 All ER 1051, 1063 (approved by the Victorian Court of Appeal in R v ACR Roofing Pty Ltd [2004] VSCA 215; (2005) 11 VR 187 [68] and by this court in Reilly v Devcon [68]):
… the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person - that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.
But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken …
The question of what is reasonably practicable is a matter of fact and degree in each case.
In Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199, a worker employed by a company, Allied Engineering Pty Ltd (Allied), fell from unstable scaffolding that had been erected by the appellant (Scaffolding). Allied had entered into a contract with the respondent (ABC) to carry out maintenance work for ABC at its premises. ABC had contracted with Scaffolding to provide and erect the necessary scaffolding. Section 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA) (OHSW Act) required an employer, in respect of each employee employed or engaged by it, to ensure, so far as is reasonably practicable, that, while at work, the employee is safe from injury and risks to health. Under s 4(2) of the OHSW Act, ABC was deemed in certain respects to be the employer of the worker. Doyle CJ (with whom Williams and Martin JJ agreed) said:
On the evidence, ABC did 'ensure so far as is reasonably practicable' that [the worker] was safe. The arrangements that it made, and the precautions that it took before work began, were all that it was reasonably practicable for ABC to do, short of itself supervising Allied and Scaffolding in all the details of the performance of their work. I cannot think of any precaution that ABC should have taken, which one would regard as something that was reasonably practical, that is likely to have prevented the accident occurring. I accept that the duty imposed by s 19(1) is a higher duty than is imposed at common law, but it is not an absolute duty. [56]
Similar observations are apposite in this case. The erection of the concrete panels and the fixing of the rafters was a task that fell outside the expertise of the appellant. Kefo and its employees, including Mr Kelsh, were certified riggers and had special skill and expertise in work of that nature. That is why Kefo was engaged to carry it out. The particular hazard which led to the accident and the means of eliminating it were also matters which fell outside the expertise of the appellant. But, on the evidence, they were matters which the appellant reasonably believed to be within the expertise of Kefo. Prior to the accident, there was nothing to indicate that Kefo lacked the relevant expertise or that it may not carry out, or was not carrying out, the work in a safe manner. Nor was there then anything to suggest to the appellant (or a reasonable builder in his position) that additional expert advice was required in order to carry out the work safely. In the circumstances, it is not apparent what other reasonably practical steps the appellant could have taken to prevent the accident.
In our view, the respondent did not establish that the appellant had failed so far as practicable to ensure the safety and health of the persons engaged in construction work on the site. We would uphold these grounds of appeal.
Although that renders it unnecessary to consider grounds 4, 5 and 6, we will do so.
Ground 4
The appellant contends that the primary judge erred in finding that the erection of the rafters by Kefo was work in which the appellant was engaged, within the meaning of s 21(1)(b) of the Act.
The particulars of the ground of appeal are as follows:
(i)The appellant was engaged by Devcon to oversee the construction of the development;
(ii)Certain work involved in the construction required the specialised services of independent contractors one of whom was Kefo which was engaged by Devcon to erect the steel roof beams;
(iii)The appellant was not engaged in the work carried out by Kefo. Only [Mr Kelsh], the principal of Kefo, gave instructions and directions to employees of Kefo as to how the erection of the steel beams was to take place. This was the evidence of employees of Kefo;
(iv)In those circumstances, the erection of the steel beams and the lateral restraint thereof was not work in which the appellant was engaged.
In finding that the erection of the rafters and the provision of lateral restraint was work in which the appellant was engaged, his Honour referred ([85]) to the appellant's 'overall responsibility' under his contract with Devcon to manage and supervise the building work and to carry out the works with due care, skill and diligence and in accordance with good industry practice, and to his responsibility for the overall supervision of the building work under the Builders' Registration Act. His Honour found that although the details of the erection of the rafters was largely left to Kefo and the direction of Mr Kelsh, the failure to ensure adequate steps were taken to provide lateral support to the rafters was within the scope of the appellant's work on the site and this element of the charges was therefore made out.
In our opinion, with respect, in so finding the primary judge erred.
On the evidence, the work in which the appellant was engaged was, as his Honour observed, the overall supervision and management of the construction work. As the respondent submitted, that required the appellant to take such steps as would constitute proper performance of the active management, scheduling and supervision of all of the building work. That, however, does not mean that the appellant was 'engaged' in every aspect of the work on the site and, in particular, that he was engaged in specific work in respect of which he did not have the relevant expertise and for which a specialist contractor had been employed.
In the present case, the evidence established first, that the appellant did not have (nor did he profess to have) training or expertise in respect of the erection of the concrete panels and rafters and he did not know, and a reasonably competent person in his position would not have known, of the risks associated with the lack of lateral restraint on the rafters and the potential for torsional forces acting on the rafters to cause the structure to collapse. He was not, therefore, in a position to direct how the work was to be done or to impose standards or practices which would have avoided or diminished the risk of that hazard. Secondly, Kefo was a specialist contractor which had been engaged to carry out the work because of its expertise, or what reasonably appeared to be its expertise, in such work. Thirdly, Kefo's employees looked solely to Mr Kelsh for instructions as to how the work was to be performed. On the evidence, it was therefore work which necessarily had to be carried out without any involvement by the appellant as to how it was carried out, including as to the provision of lateral restraint.
In the circumstances, we do not consider that the respondent proved that the relevant work was work in which the appellant was 'engaged' within the meaning of s 21(1)(b) of the Act.
We would uphold this ground of appeal.
Ground 5
Under this ground of appeal, the appellant contends that the primary judge erred in finding that s 23(3a)(a) applied to the activities of the appellant. The particulars of the ground are as follows:
(i)The appellant was engaged by Devcon to oversee the construction of the development which was a set of showrooms on the corner of Norma Road and Leach Highway, Myaree;
(ii)Section 23 did not apply to the work in which the appellant was engaged. Section 23 only applies to persons who design or construct buildings or structures elsewhere for use at a workplace and thereby places obligations concerning safety on designers, manufacturers, importers or suppliers. The appellant was none of these;
(iii)In those circumstances, the learned judge should have found that s 23(3a)(a) of the Act had no application to the activities of the appellant.
The contention in [ii] was run at trial before the magistrate, who decided it adversely to the appellant. His Honour said that while 'it is not easy to understand how the construction of unit three can be described as the construction of a building for use at a workplace … I accept that the words [of s 23(3a)(a)] are capable of applying, however awkwardly, to the situation.' He went on, however, to decide that, for other reasons, the appellant was not constructing a building within the meaning of s 23(3a)(a).
The primary judge did not refer to this issue in his reasons for judgment but focused his attention on the other bases upon which the magistrate found that the appellant was not constructing a building. The primary judge found that the magistrate had erred in respect of those matters and concluded that the appellant was constructing a building within the meaning of s 23(3a)(a).
It would therefore appear that the current issue was not raised on the appeal to the primary judge, but if that is the case, no complaint is made about it by the respondent.
It must be said at once that s 23(3a)(a) is not as clear as it might be. We do not, however, accept the appellant's contention that on its proper construction the application of s 23(3a)(a) is limited to persons who design or construct buildings or structures elsewhere for use at a workplace.
Contrary to the appellant's submission, we do not consider that any assistance is to be gained from the heading to s 23. In the first place, the heading - 'Manufacturers etc' - is an abbreviated heading and for that reason alone provides no real assistance. Secondly, the word 'manufacturers' is clearly not intended to refer to s 23(3a)(a), which is concerned with a person who designs or constructs a building or structure for use at a workplace; rather, it is obviously intended to refer to s 23(1) which deals with the duties of a person who (among other things) manufactures plant for use at a workplace and s 23(3) which deals with the duties of a person who (among other things) manufactures any substance for use at a workplace.
Section 23(3a) is one of a number of provisions in Part III of the Act designed to ensure workplace safety and health. Section 19 requires employers to ensure, so far as is practicable, that employees have a safe working environment. Section 20 requires employees to take reasonable care to ensure their own safety and health at work and to avoid adversely affecting the safety or health of others. Section 21 requires an employer or a self-employed person to take reasonable care to ensure their own safety and health at work and, so far as is practicable, to ensure that the safety or health of others is not adversely affected by the work in which they or any of their employees is engaged. Section 22(1) requires any person who has any control of a workplace to take such measures as are reasonably practicable to ensure that persons working at the workplace, or in entering or leaving it, who are not employees of that person are not exposed to hazards.
Section 23 is concerned to provide a safe environment for those who are involved in the construction, maintenance or use of a workplace. Section 23(1) imposes upon any person who designs, manufacturers or supplies any plant for use at a workplace a duty to ensure (so far as practicable) that the design and construction of the plant is such that persons who properly install, maintain or use the plant are not in doing so exposed to hazards. Section 23(2) imposes upon any person who erects or installs any plant for use at a workplace a duty to ensure (so far as is practicable) that it is so erected or installed so that persons who properly use the plant are not subjected to any hazard that arises from, or is increased by, the way in which the plant is erected or installed. Section 23(3a) imposes upon any person who designs or constructs a building or structure for use at a workplace a duty to ensure (so far as practicable) that persons who properly construct, maintain, repair, service or use the building or structure are not exposed to hazards.
In that context, in our view, there is no basis for construing s 23(3a) as referring simply to building or structures which are designed or constructed elsewhere for use at a workplace. On its proper construction, it includes the construction of the building itself if it is used as a workplace.
We would dismiss this ground of appeal.
Ground 6
This ground of appeal challenges the finding of the primary judge that the appellant was a person who had control of the workplace for the purposes of s 22(1)(a) of the Act. The workplace over which the appellant was alleged by the respondent to have control was 'a building construction site located at the corner of Norma Road and Leach Highway in Myaree'.
As we have said, the primary judge found ([98]) that 'control' in s 22(1)(a) meant the ability of any person to whom the section applied to use the influence associated with that control to install, maintain and enforce appropriate working practices and to avoid ascertainable hazards so far as practicable. We have previously quoted the primary judge's reasons in full at [33]. It is convenient to repeat a portion of that quote as follows:
The terms of the appellant's employment, his powers and duties under the Builders' Registration Act and his associated ability to give directions, means that this appellant did have control over this workplace to ensure that all others working at the site, including sub‑contractors, complied with the terms of their contracts and the statutory and other duties to ensure that safe working measure and precautions were taken in the performance of their work. The appellant had the power to require the riggers to perform work to acceptable standards and could, if he had wished, order a halt or suspension of their operations until they did so. He never attempted to do this. However, it cannot be doubted that he had the power to do so, and that amounts to the influence or 'control' of which the section speaks. [99]
The primary judge accordingly found that the appellant did have control of the workplace within the meaning of s 22(1) of the Act.
The appellant did not take issue with the description of his powers or duties by the primary judge. But, as is evident from the ground of appeal, the appellant contended that he did not have, to any extent, 'control of [the] workplace' for the purposes of s 22(1) because he did not have actual control, or the ability to exercise control, over the erection of the rafters and the provision of adequate lateral restraint.
The appellant placed reliance on Reilly v Devcon where the issue of control for the purposes of s 19(1) of the Act was considered. In that case, it was significant, however, that the relevant operation of s 19(1) was extended by s 19(4) which provided, in effect, that where a principal (in that case, Devcon) engaged a contractor (Kefo) to do work for the principal, the principal was deemed to be the employer of the contractor and employees of the contractor in respect of matters over which the principal had control.
In Reilly v Devcon, the court said:
It is significant that s 19(4) is directed to 'matters' over which the principal has control, unlike s 22(1) which is directed to a person who has, to any extent, control of 'a workplace' or of the means of access to and egress from it. This suggests that s 19(4) is concerned with actual control over a particular matter affecting safety, rather than general responsibility for, or control over, the workplace. That reinforces the notion that the legislature did not intend to impose upon a principal who has engaged a specialist contractor (who is not ordinarily susceptible to direction as to how to perform its work: see, for example, Humberstone v Northern Timber Mills (1949) 79 CLR 389, 404 (Dixon J)) a general obligation to supervise the manner in which the contractor (having an expertise that the principal lacks) goes about the performance of the work entrusted to it. [35]
The court found it unnecessary to express any opinion on the findings of the primary judge in this case in respect of the meaning of control under s 22 of the Act, concluding that those findings were not apposite to s 19.
We are not persuaded that the primary judge erred in concluding that the appellant had control over the workplace, within the meaning of s 22(1) of the Act.
The control of a workplace within the meaning of s 22 is a broader concept than the control of a 'matter' under s 19(4). In our opinion, the fact that a person who has the overall management and supervision of a workplace cannot control the specific manner in which a specialist contractor carries out their work does not mean that that person does not have, to any extent, control of the workplace within the meaning of s 22(1) of the Act. It is not necessary in order for a person to have control of a workplace that the person has control over the manner in which every activity is conducted at the workplace. While the nature or extent of the control of the workplace that the person has may be relevant to the steps it is practicable for that person to take to ensure that those at the workplace are not exposed to hazards, that is a different issue.
The appellant had overall responsibility for the management of the building work on the site. He was entitled to direct when and where work was to be carried out and to require those working at the site to comply with all of their contractual and statutory and other duties, including their obligations as to safety. He could, as the primary judge pointed out, direct a contractor to cease work or suspend the work of a contractor who failed to do so. And the appellant gave evidence that if he saw something being done wrongly on the site he would take steps to have it corrected. In our view, with respect, the primary judge correctly found that the appellant had control of the workplace within the meaning of s 22(1) of the Act.
We would dismiss this ground of appeal.
Ground 7
This ground of appeal turns on whether the primary judge erred in finding that the appellant was a 'self-employed person' within the meaning of the Act.
The relevant particulars of this ground are as follows:
1.the appellant's evidence was that he had been engaged by Devcon to look after its various developments in Perth for more than seven years; he had his own office at Devcon's premises in Daglish; he did not work for any other party except Devcon and its group of companies; he did not advertise for work because he was fully engaged by Devcon; he had not built a house for anyone else since starting with Devcon; he was paid an hourly rate rather than a lump sum for jobs carried out on behalf of Devcon; his workers' compensation insurance was met by Devcon; Devcon paid his public liability insurance and all other insurances; his motor vehicle and maintenance costs were met by Devcon; all labour and materials used by Devcon on each of its sites were supplied for and paid by Devcon; the appellant paid nothing except his own labour;
2.On the basis of the above evidence, the learned judge should have found that although the appellant had described himself in his record of interview with the respondent as a self-employed builder, he was in fact and in law an employee of Devcon.
In s 3 of the Act, an 'employee' is defined as (among other things) 'a person by whom work is done under a contract of employment' and an 'employer' as 'a person by whom an employee is employed under a contract of employment'. A 'self-employed person' is defined as 'a person who works for reward otherwise than under a contract of employment … whether or not he employs any other person'. As the primary judge observed, these definitions adopt the classic common law distinction between a contract of service which gives rise to employment, and a contract for services which is the hallmark of a relationship of principal and independent contractor.
It is clear that the proper characterisation of the relationship between the appellant and Devcon is a matter of substance, not of form, and that it is not determined by the description the parties gave to their relationship or what they thought it amounted to. The parties cannot deem the relationship between them to be something it is not: see R v Foster (1952) 85 CLR 138, 150 ‑ 151; Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 [58]. The proper classification of a contractual relationship must be determined by the rights and obligations which the contract creates, and not by the label the parties put on it: TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681, 699 (cited with approval in Hollis v Vabu).
In Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597, the Privy Council said that the following principle of law is applicable to case where there is a dispute as to the proper characterisation of a person as an employee or an independent contractor:
[S]ubject to one exception, where there is a written contract between the parties whose relationship is in issue, a court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of that contract in the light of the circumstances surrounding the making of it; and it is not entitled to consider also the manner in which the parties subsequently acted in pursuance of such contract. The one exception to that rule is that, where the subsequent conduct of the parties can be shown to have amounted to an agreed addition to, or modification of, the original written contract, such conduct may be considered and taken into account by the court: see the [Australian Mutual Provident Society v Allan] (1978) 18 ALR 385, at 392; 52 ALJR 407, at 411.
In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 37, Wilson and Dawson JJ said that 'the actual terms and terminology of the contract will always be of considerable importance' in determining whether a person is an employee or an independent contractor.
When the parties have included a clause which asserts that the relationship between them is one of principal and independent contractor, their expressed intention, while not conclusive, will be given some weight (if the contract in not a sham). See Australian Mutual Provident Society v Allan (1978) 18 ALR 385, 390; Narich (601); Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers [2004] WASCA 312 [24].
An important factor in determining whether a person is to be characterised as an employee or as an independent contractor is whether the person by whom they have been engaged has the right to exercise control, so far as there is scope for it, over the performance of the work: Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561, 571. But the right to control is not the sole criterion by which to gauge whether a relationship is one of employment; the totality of the relationship between the parties must be considered: Stevens (29); Hollis v Vabu [44] and see Professor PS Atiyah, Vicarious Liability in the Law of Torts (1967) 38. Other relevant (but not exhaustive) considerations include the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the payment of superannuation, and the payment of work‑related expenses: see Stevens (24, 36).
In his reasons for judgment, the primary judge referred ([81]) to a number (although not all) of the matters which are relied upon by the appellant on this appeal. His Honour simply noted the appellant's submission to the magistrate that his contract with Devcon created a broad subjective power of dismissal which was characteristic of an employment relationship. His Honour did not, however, accept the appellant's contention that Devcon's power under the contract to give directions to the appellant as to what should be done and how it should be done on the various building sites, was necessarily consistent only with an employment relationship. His Honour said that the full extent of the power had never been explored as the point had never been reached where an issue arose as to whether the appellant was bound to comply with any direction Devcon gave. Nor did his Honour accept that the retention of ultimate control over the site by Devcon pointed to an employment relationship, concluding that it was only indicative of the overall hierarchy in relation to all of the trades and contractors on site.
The primary judge noted that the appellant also relied on a term of the contract which precluded the assignment of the appellant's rights and interests under the contract, or the delegation or sub-contracting of the performance of his obligations, without the prior written approval of Devcon, which approval (the contract provided) would not unreasonably be withheld. His Honour observed that the term tended to point to a principal/contractor relationship, it being inconsistent with an employment relationship for an employee to assign or sub-contract performance of their obligations.
We are unable, with respect, to discern any error in the views the primary judge expressed in respect of those matters. And while the additional matters referred to by counsel for the appellant on this appeal (as described in the above particulars) are capable of indicating an employment relationship, on the other hand we do not consider that any of them is necessarily inconsistent with a relationship of principal and independent contractor. Nor is it decisive that the appellant was previously an employee of Devcon and that the work he had done as an employee was of the same nature as he did under the contract of 1 July 2002 - in that connection, the appellant's evidence was that he considered he would be better off financially as an independent contractor. All of those matters must be weighed in the balance. They cannot be considered in isolation; the totality of the relationship must be considered.
In the course of argument, counsel for the appellant referred to a number of cases, in other contexts, in which, on what were said to be facts similar (to a greater or lesser extent) to the present case, an employment relationship had been found. We do not consider it is necessary to canvass those cases. Each turned on its own particular facts. None of them was on all fours with this case and we do not consider that any real assistance is to be gained from them.
In the present case, we consider, with respect, that the primary judge correctly found that the appellant was not an employee of Devcon but was self-employed.
As the primary judge noted, the appellant had a registered business name 'SG Tobiassen' and an Australian Business Number, or ABN. Under A New Tax System (Australian Business Number) Act 1999 (Cth), an ABN is obtainable by an enterprise carrying on a business or trade, which does not include an 'occupation as an employee'.
The written contract between the appellant and Devcon told strongly against an employer/employee relationship. Clause 9 of the contract provided as follows:
(a)In carrying out the works, the [appellant] shall be acting as an independent Builder to [Devcon].
(b)Nothing in this Agreement shall make one party the partner of any other party nor constitute any party the agent of the other or create any fiduciary relationship between them.
(c)No party shall have any authority to act on behalf of the other party. Where a party acts on behalf of any other without authority, such a party shall indemnify the other from any loss, claims, damages and liabilities arising there from.
The agreement contained, by cl 13, a 'whole agreement' clause.
Under the contract, Devcon agreed to pay the appellant a fixed hourly rate for the work he did. The appellant was required by cl 4.2 of the contract to issue invoices twice monthly to Devcon (one invoice to be issued in the middle of the month and one at the end of the month) in respect of the hours he and his 'Personnel' worked and Devcon agreed to pay the amount of the invoices within seven days of the date of the invoice. By the second of the clauses numbered 5(e) in the contract, the appellant covenanted that the rates payable under the contract were 'sufficient and include a reasonable allowance for profit for [the appellant].'
Consistent with the remuneration being paid under a contract for services, no income tax was deducted by Devcon from the payments made to the appellant under the contract and no superannuation contributions were made on the appellant's behalf, nor were any sought by him. In addition, the bi-monthly invoices issued by the appellant and paid by Devcon included GST, as provided for by cl 12 of the contract. Under A New Tax System (Goods and Services Tax) Act, GST is not payable in respect of an activity done by a person as an employee.
The contract did not specify any required hours of work, nor any means by which the appellant's hours of work might be regulated or controlled by Devcon, and it made no provision for annual leave or leave of any other nature. And as we have mentioned, the contract permitted the appellant to assign his rights or interests under the contract, or to delegate or sub-contract the performance of his obligations, with the prior written approval of Devcon, which approval could not be unreasonably withheld.
When regard is had to totality of the relationship between the appellant and Devcon and the rights and obligations created by the contract, in our view it is quite clear that the proper classification of the relationship between the appellant and Devcon was one of principal and independent contractor.
We therefore consider, with respect, that the primary judge was correct in finding that the appellant was self-employed. Although his Honour did not expressly say so, we think it is clear that he found (in our respectful view, correctly) that that had been proved beyond reasonable doubt. On the evidence, the appellant was properly convicted of both charges.
We would dismiss this ground of appeal.
Leave to appeal out of time
There is one further matter and that is the question of whether the appellant requires leave to appeal out of time and, if so, whether it should be granted. The decision to convict the appellant was made on 18 January 2008. The decision in relation to sentence was made on 16 May 2008. The notice of appeal was filed on 5 June 2008. It was thus filed within 21 days of the latter decision but some four and a half months after the former decision. Although leave to appeal has been given, the issue of the late filing of the notice was not addressed. We will therefore deal with that issue.
Section 17(3) of the Criminal Appeals Act 2004 (WA) (the CA Act) provides that an appeal against the decision of a single judge cannot be commenced later than 21 days after the date of the decision unless the Court of Appeal otherwise orders.
The respondent says that, under the CA Act, the period of 21 days within which an appeal against conviction had to be instituted ran from the date of the first decision, not the date of the second decision.
When the appeal came on for hearing, senior counsel for the appellant made an oral application for leave to appeal out of time, if (which he did not concede) the appeal was out of time. That application was opposed by senior counsel for the respondent on the grounds, first, that the respondent had given notice to the appellant shortly after the notice of appeal was filed that it was out of time but no application for leave to appeal out of time had been brought and, secondly, there was no evidence to explain the failure to commence the appeal within time. We should note that it was not suggested that any prejudice would arise if leave to appeal out of time were granted.
The appellant was given leave to file an affidavit explaining the delay in commencing the appeal. An affidavit of the appellant's solicitor, Mr Bishop, was filed on 6 November 2008. In that affidavit, Mr Bishop says that on or about 21 January 2008 the appellant gave instructions to lodge an appeal against the decision of the primary judge. After conferring with counsel, a partner of the firm of solicitors retained by the appellant advised the appellant that the appeal procedure before the primary judge had not been concluded and that the time within which an appeal must be lodged did not begin to run until his Honour had determined the sentences to be imposed on the appellant. Based upon that understanding of the position, the notice of appeal was not filed until 5 June 2008.
The first question, then, is whether the appeal is out of time. Division 3 of pt 2 of the CA Act applies to appeals from a single judge of this court. As we have said, s 17(3) of the CA Act requires that an appeal against the decision of a single judge be commenced not later than 21 days after the date of the decision. Division 3 contains no definition of 'decision'. However, by the operation of s 18, div 2 of pt 2 of the CA Act (other than s 7, s 8, s 10 and s 13) applies, with any necessary changes, to and in respect of an appeal under div 3 as if the appeal were under div 2 and (unless the context otherwise requires) references in div 2 to a court of summary jurisdiction were to this court sitting in its general division.
Section 6 is contained within div 2. Section 6 provides (relevantly):
decision, of a court of summary jurisdiction, means any of the following -
...
(c)a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
…
(f)a sentence imposed, or order made, as a result of a conviction or acquittal;
…
It follows, in our opinion, that the decision to convict the appellant and the sentencing of the appellant involved separate decisions for the purposes of s 17(3) of the CA Act and that an appeal against the decision of the primary judge to convict the appellant was therefore required to be commenced within 21 days of 18 January 2008, that is, by 8 February 2008. The appellant therefore requires leave to appeal out of time.
It is evident that the late filing of the notice of appeal arose from a misapprehension on the part of the appellant's legal advisers as to the date by which it was required to be filed. The appellant reasonably acted upon that advice. While the period of delay is significant, having regard to the explanation that has been provided and taking into account the merits of the appeal, in our view it is plainly in the interests of justice that the appellant be granted leave to appeal out of time.
Conclusion
We would:
•grant to the appellant leave to appeal out of time;
•allow the appeal on grounds 1, 2, 3 and 4, but dismiss the appeal on grounds 5, 6 and 7;
•quash the convictions of the appellant on charges PE 49377/03, PE 49378/03 and PE 49379/03 and enter verdicts of acquittal;
•quash the fine of $30,000 imposed in relation to charge PE 49377/03.
We would hear further from the parties concerning the issue of costs in this court and in the prior proceedings.
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