This matter was heard before Byrne J as an appeal from a decision of a magistrate in the Victorian Magistrates’ Court.
Stratton v Van Driel Ltd  VSC 75
Van Driel Pty Ltd – Head Contractor
Signal & Hobbs
Barrie Baum (injured worker)
An employee of Signal & Hobbs
The magistrate had heard a case brought by Stratton, an investigator for WorkSafe (as it is now) charging that Van Driel had breached its obligations under the Occupational Health and Safety Act 1985 (Vic) s.21(1) and (2) when Baum fell while installing some guttering on a roof.
At the hearing in the Magistrates’ Court the magistrate had heard the defendant make a submission that there was no case to answer at the conclusion of the prosecution case. The magistrate upheld the no case submission and the prosecution appealed.
The point of the appeal was whether the magistrate had correctly found that the roofing work that Baum was engaged in was a matter over which Van Driel had no control. Van Driel submitted that it had no control over the guttering work performed by Signal and Hobbs and Baum because it was specialist work done by specialist contractors.
On appeal the respondent, Van Driel, argued that it did not have control over the specialist guttering work and so they could not be said to have “engaged” Baum under the extended definition of employee contained in s.21(3)(i) or (ii).
Byrne J provided an essentially factual judgement. He did not go in to any great examination of the law. He did however reject the argument put by Van Driel that simply because there is no control over a relevant matter does not mean that the extended definition employee in s.21(3) applies. Rather he said that it works the other way. Firstly to establish whether there is employment in the extended sense and secondly to consider the particular matters said to be within the control of the head contractor, Van Driel in this instance. He found that on the evidence given by Van Driel’s own director that if he had given an instruction to Baum on site regarding safety he would have expected Baum to comply with it. On the basis of this, Byrne J found there was evidence on which the prosecution case could be founded. He therefore upheld the appeal and overturned the magistrate’s finding of no case submission.