A Servant and Two Masters? – the doctrine of joint employment in Australia

By Rohen Cullen

"There is a need for a re-examination of the principles of Industrial relations law, as they should be applied to Host Employers due to the control that they may exercise over workers they engage through a labour supply agency."

"There is a need for a re-examination of the principles of Industrial relations law, as they should be applied to Host Employers due to the control that they may exercise over workers they engage through a labour supply agency."

So said Cmr Tabbaa in the case of SDA v GlaxoSmithKlyne 1 [2202] NSW IR Comm 1025 (11 June 2002). The comments were not made in isolation. The significant increase in the use of labour hire and non standard employment over the past ten years has lead to increased concern that common law is struggling to adapt to various vicarious employment practices.

In US jurisprudence, there is both common law and statutory recognition that separate legal entities may be joint employers of a single employee. Although this doctrine has not been accepted in Australia, there have been recent signs that such a doctrine may be upheld in an appropriate factual scenario. The US doctrine and recent Australian cases and commentary are discussed by Cullen.

(Australian Journal of Labour Law. vol. 16, no. 3 December 2003)