Book Review: Much Ado about Employment and More – Workplace, Health and Safety Law in Australia

Given its compact size, Neil Foster’s Workplace, Health and Safety Law in Australia is a surprisingly thorough work on many areas of employment law. An added commendation is that it addresses a wide array of issues in a criminal law context as well as the usual civil courts or tribunal contexts.

The usual core employment law topics feature such as the distinction between a contract of employment and that with an independent contractor and the competing arrays of duties and implied terms between employer and employees.

Industrial law is touched upon even if the book is not specifically about industrial law and awards. There is also an excellent analysis of vicarious liability and a reminder that the statutorily curtailed scope of the controversial indemnity principle from Lister v Romford Ice & Cold Storage Co [1957] AC 555 otherwise remains ‘good law.’

It is pleasing that Workplace, Health and Safety Law in Australia clearly identifies the key facts in a given case. This makes it easy for the reader to identify and understand the issues and the ultimate judicial decision. For instance, one can clearly see why the employer of the barmaid in Deatons Pty Ltd v Flew (1949) 79 CLR 370 was not held vicariously liable when, outside of the scope of her work duties, the barmaid threw a glass of beer at the plaintiff (the glass itself ‘flew’ as well as the brew in Flew’s case!).

At the same time, the reader can appreciate another type of bar related case, Ryan v Ann St Holdings Pty Ltd [2006] QCA 271, where the club owner was liable for a bouncer who assaulted patrons on the basis that the conduct was ‘so closely connected’ with what the bouncer was paid to do. Recent leading cases from jurisdictions outside of Australia also feature such as the sexual abuse case of Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA 256 where vicarious liability was held to exist.

Workplace, Health and Safety Law in Australia is also helpful in its discussion of employees injured in the workplace (albeit through negligence). It helpfully considers the various Civil Liability Act(s) and the impact thereof when addressing the usual issues of duty of care, breach, causation, and injury. Damages are also far from remotely discussed.

Other ways or means by which an employee might be compensated are also commendably considered such as the various workers’ compensation schemes (aka Workcover and the like). Breach of statutory duty, especially in the context of OHS and WHS legislation, is also examined as is the law concerning discrimination in the workplace.

Especially helpful to all lawyers are commentaries on both civil and criminal proceedings arising out of or in the course of employment – to borrow a phrase. These range from the powers of Workplace Inspectors to claims of privilege as well as a discussion of the principles and practice of sentencing for workplace offences.

Neil Foster’s Workplace, Health and Safety Law in Australia is also a ‘think tank’ springboard for those practitioners who are faced with less than clear cut employment related cases. The book includes recent and/or unique cases (the law being as at, it appears, April 2012). It also, very helpfully, sets out novel yet sensible ideas and notions which might assist those of us who are pondering a difficult or vexing workplace issue.

Ongoing Editions or ideally an updated website version of Neil Foster’s work must ensue. After all, what happens in the field of employment appears to have no bounds. This was exposed in the recent Full Federal case of Comcare v PVWY [2012] FCAFC 181(delivered 13 December 2012. In PVWY, the well-known workers’ compensation phrase ‘arising out of, or in the course of, employment’ was held to cover a Commonwealth Government Agency employee who was required to work out of town and stay at a motel room booked by her employer where she was injured whilst having sex.

Julian Wagner

Chambers

31 January 2013