Case: Swift Placements Pty Limited v WorkCover Authority of New South Wales (2000) 96 IR 69
Outcome: cited
CAO submitted that in substance and reality, the applicants entered into a contract with and were each employed by MES, and their attendance at the HVO to perform work pursuant to that contract involved no 'distinct offer of employment' by CAO, nor 'an acceptance of such employment by the applicants'. CAO referred by way of analogy to Swift Placements Pty Limited v WorkCover Authority of New South Wales (2000) 96 IR 69 at [38], where the following appears in the judgment of the Full Court of the Industrial Relations Commission of New South Wales in Court Session (Wright, Walton and Hungerford JJ): '38. Shortly stated, Mr Terkes obtained the work from the appellant and agreed to perform it on the appellant offering it to him; attendance by him at Warman's premises to commence and continue performance of the work involved no separate or distinct offer by Warman nor acceptance by Mr Terkes. It follows, in our view, that to the extent any legal relationship existed it did so between the appellant and Mr Terkes, although, of course, the nature of such relationship is another question.' 129 CAO next addressed the relevance of control to the establishment of a contractual relationship and submitted to the negative of any proposition to that effect. I was referred to Swift Placements at [31], where the following appears: 'Here, of course, Mr Terkes operated the machined owned by Mr Warman and at its premises, but, unless Warman engaged him to do work for it on certain terms then the fact it may have had a degree of control over such work would count for little other than as providing some evidence that it may have employed him.' A further exemplification of judicial discussion of the significance of control to the existence or otherwise of a contract of service in favour of a worker may be found in Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 where the New South Wales Court of Appeal (Handley JA, with whose reasons Mahoney and Powell JJA agreed) withheld from finding that a binding legal relationship of employer and employee was established in relation to an injured volunteer worker at a religious camp, in circumstances, where that person's volunteer work at the camp fell within the description of '[f] amily, social and domestic arrangements' (at 310); accordingly that injured person was held not to qualify for workers compensation, as an employee the subject of a contract of employment. 187 I would therefore conclude that CAO is correct in its contention that in substance and reality, each of the applicants entered into a contractual relationship with and was employed by MES according to the general law at all material times, and that the applicants' respective attendances at the HVO to perform mining work, albeit for the benefit of CAO as a major operator in the HVO, as well as in a commercial sense for MES in the context of its business of labour hire, did not constitute or involve explicitly or implicitly any offer of employment by CAO to either of them, nor any acceptance by either of them of any offer of employment by CAO, explicitly or implicitly. The work which each of the applicants undertook in the HVO was undertaken by way of labour hire in the context of their respective employment functions undertaken contractually for MES, and thereby as employees of MES alone according to law. CAO's citation of Swift Placements in that context of labour hire precedent was appropriate. 188 Apart from an absence of evidentiary circumstances indicative explicitly or implicitly of any relationship according to law of the employment by CAO of either of the applicants at any material time, there are further factors and reasons which serve to demonstrate why the applicants' case for establishment of any employment relationship between themselves and CAO should fail. 189 There is force in the additional submissions of CAO, appearing under the heading 'Mutual assent analysis', contextually to a threshold acknowledgment of the principle that a viable contract of employment existing by mutual assent may be recognised by law in circumstances where the traditional analysis of offer and acceptance is inappropriate. For the reasons advanced however by CAO, and appearing in [126]-[128] above, I agree that the kind of circumstances in which a contract has been imputed by judicial precedent to exist in contexts yielding a conclusion of mutual assent are removed from the circumstances in evidence in the present litigation.