LAWS1003A Lecture Notes - Lecture 11: Wesfarmers, Fair Work Ombudsman, William Gummow
2 Jul 2018
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For vicarious liability to be imposed on an employer, the following elements have to be satisfied, as
identified by Lord Phillips1 at [35]:
1. The wrongdoer was an employee of the employer.
2. The action occurred during the scope of employment.
3. There was a wrongful act.
In this case, there is no dispute that there was a wrongful act- Tracy hit Wendy with a forklift,
causing severe injury. There are two areas to be disputed:
1. Whether Tracy was an employee or an independent contractor; and
2. Whether this occurred in the scope of employment.
1. Is Tracy likely to be regarded as an employee or an independent contractor?
The ‘Control Test’, first recognized by Baron Bramwell in R v Walker (1858) 6 WR 505, is used to
distinguish between an employee and an independent contractor by assessing the degree of control
in which the employer has over the worker.2 Justice Mason, in Stevens and Brodribb Sawmilling Co
Pty Ltd3, laid the foundations in establishing further supplementations to the Control Test, observing
that:
Other relevant matters include, but are not limited to, the mode of remuneration, the provision and
maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the
deduction of income tax and the delegation of work by the punitive employer… control is not now
regarded as the only relevant factor. Rather it is the totality of the relationship between the parties
which must be considered.
These matters were identified in Ewart v Caruso4 at [29] but further reiterated by the Full Bench of
the Industrial Relations Commission in Abraham Abdalla v Viewdaze Pty Ltd5, citing Brodribb and
Hollis v Vabu6 in order to distinguish employees from independent contractors:
Whether the employer reserves the right to, or exercises, control over the worker, and how
the work is completed.
Whether the worker is able to complete work for others.
Whether there is a separate place of work, or an office as such.
Whether the worker provides and maintains equipment.
1 The Catholic Child Welfare Society v Various Claimants & The Institute of Brothers of the Christian Schools
[2012] UKSC 56, [2013] 1 All ER 670.
2 W.R Waller, Independent Contractor or Employee? (2007) The Law Society of Saskatchewan (p6)
<http://redengine.lawsociety.sk.ca/inmagicgenie/documentfolder/ac4952.pdf> at 14 May 2017.
3 Stevens and Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16.
4 Ewart v Caruso [2013] WASCA 266.
5 Abraham Abdalla v Viewdaze Pty Ltd t/as Malta Travel- PR927971 [2003] AIRC 504 (14 May 2003) at [34]
6 Hollis v Vabu (2001) 207 CLR 21.
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Document Summary
In this case, there is no dispute that there was a wrongful act- tracy hit wendy with a forklift, causing severe injury. There are two areas to be disputed: whether tracy was an employee or an independent contractor; and, whether this occurred in the scope of employment. Pty ltd3, laid the foundations in establishing further supplementations to the control test, observing that: Rather it is the totality of the relationship between the parties which must be considered. These matters were identified in ewart v caruso4 at [29] but further reiterated by the full bench of the industrial relations commission in abraham abdalla v viewdaze pty ltd5, citing brodribb and. Hollis v vabu6 in order to distinguish employees from independent contractors: Whether the employer reserves the right to, or exercises, control over the worker, and how the work is completed. Whether the worker is able to complete work for others.
