Foster v Chief Executive Officer of The Department of Agriculture

[2006] WASCA 95

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Workers' Compensation
2. › Deemed employer
3. › Principal contractor and sub-contractor
4. › Joint venture agreement
5. › Whether joint venture agreement constitutes contract 'for the execution of any work'
6. › Distinction between contract for execution of work and contract for supply of workers
7. › Workers' Compensation and Injury Management Act 1981 (WA), s 175(1)
1. Workers' Compensation
2. › Deemed employer
3. › Principal contractor and sub-contractor
4. › Meaning of 'by or under' the contractor
5. › Whether seconded employee's work was 'by or under' the seconding party
6. › Workers' Compensation and Injury Management Act 1981 (WA), s 175(1)
1. Workers' Compensation
2. › Deemed employer
3. › Relationship between extended definition of 'employer' in s 5 and deemed employer provision in s 175(1)
4. › Distinction between lending or hiring out services of a worker and contracting for execution of work
5. › Workers' Compensation and Injury Management Act 1981 (WA), ss 5, 175(1)

Quick Take

A joint venture agreement under which parties contribute personnel by secondment is a contract for the supply of workers, not a contract 'for the execution of any work' within s 175(1) of the Workers' Compensation and Injury Management Act 1981 (WA). Marsden v Unimin Australia Ltd [2004] WASCA 143, which characterised labour hire contracts as contracts for the execution of work, should not be followed. The words 'by or under' the contractor in s 175(1) require some degree of control or supervision by the contractor greater than merely providing an employee for a task.