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Odco Judgement
Troubleshooters Available (TSA), originally operated through a company
called Odco Pty Ltd (“Odco”) supplied contract carpenters,
labourers, shopfitters and other construction personnel to the commercial
building industry in Melbourne. It was a core aim of TSA
that the workers they supplied would always be self-employed contractors
and not employees of either the agency or the agency’s
client builders.
It was believed for both contractors themselves and builder clients, much
greater levels of flexibility, productivity and efficiency
could be achieved. We set up contracts to enshrine these arrangements and
ensured that all involved in the arrangements well
understood (and stated at all times) that the workers were contractors and
not employees.
As a direct result of these contractual arrangements, TSA grew very
quickly during the 1980’s. That growth, and the fact that TSA
was working on commercial building sites in Melbourne, avowing themselves
to be contractors, did not endear them to the building
unions who commenced trenchant opposition to the presence of TSA
contractors on building sites.
Eventually that opposition, which was causing substantial loss to TSA, was
challenged by TSA in a Federal Court action against the
building unions, the primary one of which was then called the Building
Workers Industrial Union (now the CFMEU). That action alleged
that the unions had breached Section 45D of the Trade Practices Act 1974 (Cth),
in that their actions in requiring builders to
remove TSA contractors from building sites were secondary boycotts in
breach of that section of the Act.
The core decision which the Federal Court had to make in that the action
was whether, at common law, the TSA workers were
contractors or employees.
Mr Justice Woodward delivered the trial judgement in that case of Odco Pty
Ltd v BWIU & Ors on 24 August 1989 (“ Odco decision”) and
determined that the TSA workers were contractors and not employees of
anyone. That trial judgement is unreported but copies are
freely available and a reading of the first 127 pages of that judgement
(which deal with the contractor/employee question) is
recommended. Woodward J., in those pages, described the system of contract
labour hire used by TSA in great detail and provides the
best analysis of those contractual arrangements and how they result in the
workers being contractors and not employees.
The BWIU appealed the trial judgement but the Full Court of the Federal
Court (Wilcox, Burchett & Ryan JJ.) unanimously dismissed
the appeal. The appeal decision is reported at (1991) 99 ALR 735 and
(1991) 29 FCR. 104.
The BWIU then sought special leave to appeal to the High Court. Special
leave was unanimously refused.
In his evidence to the Royal Commission into the Building Industry, on
Tuesday 14th May, 2002, John Cummins, President of the
Victorian branch of the CFMEU stated under oath, in the witness box that
Troubleshooters Available is a legitimate company and to
quote him *blind Freddy knows it". John also acknowledged that
Troubleshooters Available does not require an EBA, nor can
Troubleshooters Available contribute to Incolink for it's contractors. As
he stated, "there is no Incolink compliance available for
Troubleshooters because of the nature of Troubleshooters".
He went on to say "most other people are eligible to have EBAs and be
registered with Incolink". Troubleshooters is an exception to
that rule.
Following those successes, the company founders saw an opportunity to
spread their unique method of contract labour hire (which now
received endorsement of the High Court) to other industries and around
Australia. Odco sold the rights to the System to the Labour
Force Australia Pty Ltd (“Labour Force”), a company set up specifically to
license the System.
Labour Force commenced to license the System in 1994 and now licenses the
System to all States and Territories of Australia,
Licensees operate in all major capital cities in Australia and in many
regional centres.
Contractors currently working under the System include farm hands,
doctors, secretaries, personal assistants, managers, process
workers, child care workers, shearers, fishermen, abattoir workers, metal
trade workers, transport drivers, public servants,
telemarketers, printers, security guards, sales people, cleaners, building
workers and many others.
On any one day, there are thousands of Odco contractors working in a wider
variety of industries across Australia.
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