Wilton & Cumberland v Coal & Allied Operations Pty Ltd [2007] FCA 725

FEDERAL COURT OF AUSTRALIA

Wilton & Cumberland v Coal & Allied Operations Pty Ltd [2007] FCA 725

WORKPLACE RELATIONS – applicants provided to respondent coal miner by way of labour hire entity – coal miner additionally retained workers on its own payroll – applicants worked on site alongside coal miner's employees – whether applicants so hired became employees of coal miner according to law irrespective of extent of contractual relationship subsisting concurrently between labour hire provider and applicants – examination of Australian and United Kingdom authority and of statutory and judicial indicia bearing upon issues arising inclusive of implications of labour hire – whether employment relationship existed between applicants and respondent coal miner irrespective of labour hire arrangement – no employment arrangement in operation between coal miner and applicants according to law

Workplace Relations Act 1996 (Cth) ss 4, 101, 103, 114, 170LT, 178(1) and (6), 179A, 356 and 412 Federal Court of Australia Act 1976 (Cth) ss 21, 22 and 23 Occupational Health and Safety Act 1983 (NSW) s 15(1) (repealed) Occupational Health and Safety Act 2000 (NSW) s 8(2) Coal Mines Regulation Act 1982 (NSW) ss 34-36, 37, 38, 42, 43, 101, 103 and 114, Schedule 1 Part B (repealed) Coal Mine Health and Safety Act 2002 (NSW) (generally)

Coal Mines (Open Cut) Regulation 1999 (NSW) cll 10 and 11 and Part 2 Coal Mines (General) Regulation 1999 (NSW) cl 79 (repealed)

Carter JW and Harland DJ, Contract Law of Australia (4th ed, Butterworths, 2002)

ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228referred to A/asian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd & Ors (T/as Sunland Wholesale Meats) (1998) 24 IR 467 referred to Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540 referred to BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361 referred to Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153cited Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358 discussedand distinguished Building Workers' Industrial Union of Australia and Others v Odco Pty Ltd (1991) 29 FCR 104cited Byrne v Australian Airlines Limited (1995) 185 CLR 410 cited and discussed Cable & Wireless plc v Muscat [2006] IRLR 354 discussed and distinguished Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467cited Dalgety Farmers Ltd t/as Grazcos v Bruce & Another (1995) 12 NSWCCR 36 cited Damevski v Giudice and Others (2003) 133 FCR 438 cited and discussed Doyle v Sydney Steel Company Limited (1936) 56 CLR 545cited Drake Personnel Ltd and Others v Commissioner of State Revenue (2000) 2 VR 635 cited Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 applied Forstaff Pty Ltd v Chief Commissioner of State Revenue (2004) 144 IR 1 cited Hollis v Vabu Pty Limited (2001) 207 CLR 21 referred to Howard Smith & Company Limited v Varawa (1907) 5 CLR 68 referred to Humberstone v Northern Timber Mills (1949) 79 CLR 389 referred to Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 cited and discussed Macdonald v Australian Wool Innovation Ltd [2005] FCA 105cited Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 at 443 referred to Mead v New England Seed Traders Pty Limited [1972] WCR (NSW) 113 cited Pitcher and Another v Langford and Another (1991) 23 NSWLR 142 cited Queensland Stations Proprietary Limited v The Federal Commissioner of Taxation (1945) 70 CLR 539 referred to Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 cited Reed v Blue Line Cruises Limited (1996) 73 IR 420cited The Roy Morgan Research Centre Pty Ltd v Commr of State Revenue (Vic) (1997) 97 ATC 5070 cited Stephenson v Delphi Diesel Systems Ltd [2003] ICR (Industrial Cases Reports for England and Wales) 471 referred to Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 applied Swift Placements Pty Limited v WorkCover Authority of New South Wales (2000) 96 IR 69 cited Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 referred to The Queen v Foster and Others; Ex parte Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138 referred to Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2006] QB 510 discussed WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd (No 1) (2001) 108 IR 283