Date: Wed, 12 Oct 2005 12:24:11 +1000

From: Neil Foster

Subject: Two employers

Thanks for the tip on this case, Andrew! This is the first time I have contributed to this list but I've been lurking for a while benefiting greatly from other's comments. Participants might be interested to note that in Australia the possibility of the one employee having two different employers (at the same time and in relation to the same job) has been mooted by the Full Bench of the Australian Industrial Relations Commission in Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152 at paras [72]-[77]. This possibility has then been considered by other decisions at a similar level but not so far adopted by any court as far as I can see. There is a discussion of the matter in Creighton & Stewart Labour Law (4th ed, Federation Press, 2005) at pp 283-284.

On the decision in Viasystems itself, I will have to read it again. But it strikes me (as the comments of other members of the list also imply) that the members of the Court of Appeal are a bit unclear as to whether they want to find that young Darren had two employers, or whether they don't want to go so far and instead simply want to say that there are two entities that are vicariously liable. See para [49] where at the last moment Lord Justice May refers to there being 'two "employers"' (with quotation marks), but definitely finding that there can be 'dual vicarious liability'. This also seems to be the thrust of the quote from Denning LJ in para [69] in Lord Justice Rix's comments. The result may then be that the court is really saying that what we need to do is to extend vicarious liability to entities other than employers, rather than to change the law about employers in general. After all, if Darren had two employers, then shouldn't both of them have been paying superannuation, tax, insurance, etc etc for him? And since the Court has now told us this is in fact the case, shouldn't someone in a government department be prosecuting one of these entities for not carrying out their responsibility as employers? This was the sort of consequence that led McHugh J, of course, in his dissent in the High Court of Australia in Hollis v Vabu [2001] HCA 44 (see [69] for the bad consequences of extending the definition of "employee") to hold that there should be vicarious liability for the acts of certain classes of "representative agents" who were not employees. It may be that the Court of Appeal here in Viasystems will end up pushing the law in this direction.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Robert Stevens 12/10/05 6:01 >>>

This is a possible, if radical, explanation for the decision of the Court of Appeal. You would have to say (I think) that the High Court of Australia were wrong in Scott v Davis in thinking that the motor vehicle cases should be put into a box and forgotten about.

If this view is correct why am I not always liable for those who do a job for me? In Ormerod (or in the case of the errand running child) after the defendant has selected and dispatched their "agent" they exercise no control over them. On one view I would not only be liable for the acts of 'independent contractors' but all those who undertake a task on my behalf where I have control over their selection.

I make no comment on the level of discipline in Professor Tettenborn's home.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>