Case: The Queen v Foster and Others; Ex parte Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10 ; (1952) 85 CLR 138
Outcome: referred to
Generally as to the significance of the extent of direction and control of the applicants exercised by CAO, the applicants submitted that the Court was requested to look at all of the circumstances of the employment relationship, and in particular whether the label given to it reflects the reality, as well as the significance, of 'the control test' in any analysis of the employment relationship. CAO pointed however to the need to bear in mind that the contexts of the judicial observations for instance in The Queen v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10 ; (1952) 85 CLR 138 at 151 (Dixon, Fullagar and Kitto JJ) and Dalgety Farmers were not related to labour hire arrangements, contrary of course to the situation here. That different context was said to reduce the reliance that may be placed on those judicial observations. That passage relied upon by the applicants in The Queen v Foster joint judgment at 151 was as follows: 'For, if in practice the company assumes the detailed direction and control of the agents in the daily performance of their work and the agents tacitly accept a position of subordination to authority and to orders and instructions as to the manner in which they carry out their duties, a clause designed to prevent the relation receiving the legal complexion which it truly wears would be ineffectual.' It was hence said by CAO that the circumstances in which persons are engaged to undertake work have developed materially since those general observations were made, particularly in relation to the evolution of activity of labour hire agencies. Thus in terms of control, it was further said by CAO that the relevant inquiry is not confined to the party that has exercised control, but extends to the circumstances by which control came to be exercised, including any contractual allocation of control by an employer to that other party, and any contractual undertaking by an employee to accept control from such other party. 181 Significance was further sought by the applicants to be assigned to CAO's management, and in particular as to management's alleged discipline of each of the applicants, whereof evidence was adduced by the applicants, being management and discipline seemingly indistinguishable in principle, or at least largely so, from that in force for the time being in relation to CAO's mining workers acknowledged to be in CAO's employment. I have outlined the evidentiary material relied upon by the applicants in that regard, and the asserted ascription on the part of the applicants of relevance thereto said to be a factor pointing to an employment relationship in relation to each of the applicants. It is not foreign to or inconsistent with any such operational structure, whether as here involving mining with heavy machinery, or otherwise, that CAO took the purported disciplinary action that it did in relation to the alleged worksite misconduct on the part of Mr Cumberland complained of by CAO, given especially CAO's evident perception, rightly or wrongly objectively speaking, of the physical danger thereby caused by his operation of CAO's heavy machinery. In that regard I have already acknowledged the force of CAO's submissions. I have earlier at least inferred that the applicants' purported reliance upon The Queen v Foster needs to be discounted or else rejected in contexts of labour hire circumstances such as are here involved.