This matter was run in the County Court of Victoria before a judge and jury. ACR was acquitted of two counts but convicted of a third. That charge was pursuant to s. 21 of the Occupational Health and Safety Act 1985 (Vic).
R v ACR Roofing Pty Ltd (2004) 11VR 187
Peter Gibson Developments
ACR Roofing Pty Ltd
Associated Rigging
James Cranes
Operator: Richard Reynolds
(The deceased) Dogman: Mathew King
Particularly s. 21(3) of the Act states that “an employee includes an independent contractor ENGAGED by an employer and any employees of the independent contractor and:
(b) the duties of an employer under those subsections extend to such an independent contractor’s employees in relation to matters over which the employer –
(i) has control; or
(ii) would have had control but for any agreement between the employer and the independent contractor to the contrary.
In the County Court the trial judge made a finding that ACR had “engaged” James Cranes by reason of agency. This provoked the defence during the trial to seek a new trial on the grounds that the prosecution had never alleged an agency and that the judge had imported this notion in order to cover up a deficiency in the prosecution case.
The second ground of appeal flowed from the judge’s directions as to whether James Cranes was engaged by ACR Roofing. The defence argued that they did not have control over the activities of the employees of James Cranes in conducting the lift of steel panels on to the roof.
In the Court of Appeal, JA Nettle gave the decision for the majority. He firstly found that the trial judge had made an error in defining the word “engaged” to incorporate any notion of agency. However His Honour said even though the trial judge had misdirected himself as to what “engaged” meant the term “engaged” clearly encompassed the relationship between ACR Roofing and James Cranes. In particular he dismissed the notion put by the defendant (ACR Roofing) that “engaged” should be limited to contractual engagement. For the defence pointed out that they had never made the contract with James Cranes rather they had given the job to Associated Rigging who, being unable to complete the job, had passed it on to James Cranes. This was quite usual within the industry.
In dealing with the issue of control, Nettle JA relied on the decision in R v Octel [1994] 4 AllER 1051 at 1063. He noted that each case will ultimately turn on its own facts but those matters within the contractor’s expertise, and beyond that of ACR’s would mean that the head contractor had no control over the relevant matter [68]. However in this case Nettle JA found that ACR did have control over a relevant matter being the erection of steel safety mesh. This was not wholly within the control of James Cranes but rather was something that ACR should have attended to not just for the purposes of the crane lift but also for the safety of its own employees.
