Employment, health and safety
| Author | Julian Bailey |
| Pages | 1579-1651 |
1579
CHAPTER 21
EMPLOYMENT, HEALTH AND SAFETY
Introduction 1580
Who is an employee? 1580
Employers’ health and safet y obligations at common law 1582
(i) Safe system of work 1582
(ii) Scope of employer’s obligation 1583
(iii) Provision of suitable plant and equipment 1587
(iv) Non-delegable duty 1588
(v) Contributory negligence 1589
(vi) Compulsory insurance 1591
(vii) Proof 1592
(viii) Damages 1594
(ix) e ability of third parties to recover damages 1597
(x) Limitation period 1597
Employers’ statutor y health and safety obligations 1597
(i) Introduction 1597
(ii) England 1598
(iii) Australia 1606
(iv) Hong Kong 1609
(v) Singapore 1612
Historical background to workers’ compensation legislation 1615
Australian workers’ compensation legislation 1617
(i) Introduction 1617
(ii) Compulsory insurance 1618
(iii) Procedure for recovering compensation/seeking rehabilitation 1619
(iv) Amount of compensation 1620
(v) Disputes over compensation 1620
(vi) Recovery of common law damages 1620
(vii) ird parties 1621
(viii) Limitation period 1622
Hong Kong employees’ compensation legislation 1622
(i) Introduction 1622
(ii) Employers and principal contractors 1622
(iii) Compulsory insurance 1623
(iv) Assessment of and claims for compensation 1623
Singapore workers’ compensation legislation 1624
(i) Introduction 1624
(ii) Compulsory insurance 1625
EMPLOYMENT, HEALTH AND SAFETY
1580
(iii) Making claims 1625
(iv) Computation of compensation/assessment of claims 1625
Independent contractor 1626
(i) Introduction 1626
(ii) Who is an independent contractor? 1626
(iii) Signicance of independent contractor status 1627
Duty of main contractor to subcontractor’s employees 1631
Duty of government or public authority 1633
Terms of employment 1634
(i) Employment agreements 1634
(ii) Reduced productivity due to delay 1640
(iii) Obligation to comply with employment laws 1641
Trade unions 1641
(i) Construction trade unions 1641
(ii) Access to union members 1642
(iii) Strikes and other industrial action 1644
Apprentices and trainees 1650
Introduction
21.01 ere are two overlapping areas of law concerning the engagement of individuals
to perform work that are of primary relevance to those involved in the construction
industry. e rst area comprises health and safety laws, which include the obligations of
employers (and “quasi-employers”) to construction workers, and the remedies available
to workers in the event of accident or injury in their workplace.1 Health and safety laws
are of paramount importance to those involved in the construction industry, given the
potential dangers of construction operations. Liability in respect of health and safety
issues is usually founded on breach of contract, tort (ie, negligence) and/or breach of
statutory duty. e second area of importance concerns the terms of employment of
construction workers. Employment law is an enormous topic in its own right, and is only
touched upon in this text.2
Who is an employee?
21.02 e characterisation of a worker’s relationship with the person who has requested
him to perform work is crucial to the determination of the incidents of the legal rela-
tionship between the two. e relationship between an employer and an employee is
1 However, it is to be noted that health and safety laws are concerned not only with those who perform construc-
tion and engineering work for a living, but may also apply to persons who perform such work on a voluntary basis:
see, eg, Lenz v Trustees of the Catholic Church [2005] NSWCA 446.
2 For detailed works on the topic, see, eg, Napier et al, Harvey on Industrial Relations and Employment (Lexis
Nexis, looseleaf); Sappideen, O’Grady and Riley, Macken’s Law of Employment (omson Reuters, 8th edition,
2016); Stewart, Stewart’s Guide to Employment Law (Federation Press, 6th edition, 2018); Glofcheski and Aslam
(eds), Employment Law & Practice in Hong Kong (Sweet & Maxwell, Hong Kong, 2nd edition, 2016); Chandran,
Employment Law in Singapore (Lexis Nexis, Singapore, 6th edition, 2019).
EMPLOYMENT, HEALTH AND SAFETY
1581
dierent to that between a person who has requested that work be performed and a
non-employee who performs the requested work.3 So who is an employee? In many cases
the answer will be obvious,4 in others less so. e general answer that one may give is
that an employee is a person who enters into a contract of service with another person
(as opposed to a contract for services).5
21.03 Employment contracts have historically represented the primary basis upon
which construction workers have been engaged by construction businesses to perform
work. However, over recent decades the employment landscape has changed signi-
cantly, so that workers are often engaged to perform work on a basis other than that of as
an employee. e legal relationship between a person who performs work on a construc-
tion site, and those who pay him for performing that work, may fall under any one of
three categories, being (i) employer and employee, in which case the full legal rights and
obligations of a contract of employment apply; (ii) a “quasi-employment” relationship,
where the worker is not actually an employee but is, in certain respects, treated in law
as if he were an employee; and (iii) a relationship under which the worker is classied
as an independent contractor, in which case the relationship is not in any way one of
employment.6 e economics of such relationships is often signicant, as the overall cost
to a business of employing a person to perform construction work is usually greater than
the overall cost of arranging for an independent contractor to perform the same work.
3 A further issue which sometimes arises (but will not be explored in any detail in this text) in relation to employees
is: who is the employer? e issue may be relevant where a person who was originally employed by A is assigned
to work, on site, for B, and is (among other things) instructed by B on what work to perform and when. Is the
person then employed by A or by B (or both of them)? e position of the law is that an employee’s contract of
employment cannot be transferred from A to B without the employee’s consent: Cross v Redpath Dorman Long
Contracting Ltd [1978] ICR 730 at 734, per Phillips J; Bolwell v Redclie Homes Ltd [1999] EWCA Civ 613. A
similar paradigm in which the issue may arise is where a worker is employed by a business which trades through
a number of companies, and due to the informality (or even mismanagement) of the employer/employee relation-
ships within the business, the identity of the worker’s employer is unclear. e resolution of such an issue ultimately
depends on the circumstances of the person’s employment, and indeed it is possible for an employee to be employed
by more than one employer, but only in respect of dierent services: Chung Yuen Yee v Sam Woo Bore Pile Foundation
Ltd (2013) 16 HKCFAR 315 at [13], per Lord Homann NPJ. Under European employment law, the obligations
of an employer may be transferred from A to B where B takes over A’s business: see Transfer of Undertakings
(Protection of Employment) Regulations 2006 (SI 2006/246), enacting EU Directive 2001/23/EC.
4 See Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 at 163–164 [9], per Ribeiro PJ.
5 See Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515,
per MacKenna J; Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358 (CA); Bunce v Postworth Ltd [2005]
IRLR 557 (CA); Clyde & Co LLP v Van Winkelhof [2014] UKSC 32 at [24].
6 Independent contractors are discussed at paragraph 21.95.
To continue reading
Request your trial