This post has been amended. A person who posted a comment on the original post (posted on Monday 1 June) gave some more detail and made it clear I’d misunderstood the original question. The original post appears below. The postscript that follows gives the further detail, what I now understand the question to mean, and my further answer.
The original post
Today’s correspondent wants to raise a story of a person who is both a volunteer and employee in NSW emergency services who is reported to have been convicted of some sexual offence. I do not know the details; I do not want to know the details.
The question I’m asked, omitting any details is:
Are you able to clarify, in addition to your previous articles, what responsibility an employer has if they are using contractors with their own ABN compared to hiring permanent or casual staff and whether NSW WWCC or NPC would even disclose such offences?
The inference that I draw from the question (and some omitted material) is that at least in my correspondent’s mind, this person should not be employed because of this record. In my view that doesn’t follow. First there are many offences that can see one registered as a sex offender (see Child Protection (Offenders Registration) Act 2000 (NSW) definitions of ‘class 1’ and ‘class 2’ offences). This can include more than one incidence consensual sexual intercourse say between two young persons both aged 15 years and 11 months (ss s3A-3C).
Even in registered professions, a criminal conviction does not mean you cannot be registered. An applicant for registration as a paramedic would need to disclose a criminal conviction but as the Paramedicine Board’s Criminal History Registration Standard says ‘In deciding whether a health practitioner’s criminal history is relevant to the practice of their profession, the Board will consider the following factors…’ and there then follows a list of 10 factors to be considered. A conviction is not automatic disqualification.
And the flip side of the adage ‘do the crime; do the time’ is that if you have served the penalty imposed by the court then that is the punishment. Ongoing punishment does not allow people to make mistakes and denies the idea the criminal punishment has any sort of rehabilitative effect (Granted, though, that may be no more than idealistic wishful thinking. And we have seen with more and more law and order debates the idea of anything short of life imprisonment for any offence, ever, so politicians can decide when mercy is politically acceptable, is just going ‘weak on crime’. Today a conviction does tend to haunt for life as this very discussion demonstrates).
And neither a prior conviction, nor a clear record, is proof that a person will or will not offend in the future. Every offender was a first offender at some time; and had an impeccable record before that.
It is interesting that in NSW the relevant legislation is the Child Protection (Offenders Registration) Act 2000 (NSW) so it relates to children (ie persons under the age of 18). Compare that to the ACT that provides a Working with Vulnerable Persons Check – see Working with Vulnerable People (Background Checking) Act 2011 (ACT). Presumably the circumstances when one needs a working with vulnerable persons check are wider than circumstances where one needs a child protection check.
What follows, I think is that as a matter of law, if you are doing a job that does not require you to hold a working with children/vulnerable person clearance, a prior conviction is something an employer may want to consider as part of his or her risk assessment. Like the Paramedicine Board an employer, if they know of the conviction, may consider it and still decide that a person is a suitable employee.
So what is the obligation of a person who contracts with another to provide services? If I’m running a business and decide to engage a contractor to provide services, eg event health services, I cannot be expected to vet the CV of every employee. One of the reasons I would engage a contractor is because I cannot vet the CV of every employee if I don’t know that all the qualifications or skill sets mean or what I need for my event. A sensible organiser would assess the quality of the potential contractor, and put a clause in a contract to the effect that the contractor warrants that all the people they supply are qualified and ‘fit and proper’ but I cannot see that there is much more they could reasonably do. And a previous conviction, as discussed above, many not mean that the person is not ‘fit and proper’. It depends on all the circumstances.
I have no idea ‘whether NSW WWCC or NPC [National Police Check] would even disclose such offences’. I note that a sample police check on the Australian Federal Police website says:
Legislation in various state and territories and the Commonwealth of Australia restricts the information that can be disclosed about a person’s court outcomes unless specific exemptions apply under law. Legislative exemptions can include specific types of employment, voluntary work, licence or membership of a profession. The information provided will include all disclosable convictions or findings of guilt by a court.
After writing the post, above, I received this comment:
‘Are you able to clarify, in addition to your previous articles, what responsibility an employer has if they are using contractors with their own ABN compared to hiring permanent or casual staff and whether NSW WWCC or NPC would even disclose such offences?’
In my personal opinion this has not been addressed in this post. The particular employer that was mentioned in the media has a long history of hiring paramedics and student paramedics on the condition that they have their own ABN. If I recall correctly, their managing director has stated as much at the coronial inquest in 2019 when he proudly proclaimed, he only had 3 to 4 staff an the rest of the crew were contractors. This is a very different scenario to an organiser hiring an event health services contractor, especially when the lead contractor would represent to organisers that their staff are fully vetted medics.
Indeed that is a different scenario and confirms my misunderstanding. I had interpreted the original question to mean ‘what is the responsibility of an event organiser who hires a contractor to provide event health services?’ I see now that the question is ‘what is the responsibility of a person who offers to provide health services but purports to do so as a primary contractor who sub-contracts to others, rather than providing employees?’ That is ‘a very different scenario’ and requires a further answer.
The further and better answer
On this blog I have often written about vicarious liability – see all the posts here https://emergencylaw.wordpress.com/?s=Vicarious+liability. Vicarious liability is a feature of employment law but as I have argued in many of those posts, I have no doubt it extends to volunteers. Traditionally it does not extend to independent contractors (see Sweeney v Boylan Nominees Pty Ltd  HCA 19) but it’s not that simple.
The critical case, in this context, is Hollis v Vabu  HCA 44. This was a case about a bicycle courier and whether Vabu Pty Ltd (trading as Crisis Couriers) was liable to compensate a person who was struck by one of their bicycle couriers even though the arrangements were meant to ensure that each courier was an independent contractor and not an employee.
At , Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ said (in legalese):
In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.
In the context of Vabu Pty Ltd, the couriers were assigned work by Vabu, they were a uniform that had Vabu’s livery on it; they did not pick their own time of work or control over their work; couriers submitted time sheets, not invoices and were not able to set their own work rates but had to accept that from Vabu.
In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 the issue was whether the hospital was vicariously liable for the negligence of a visiting medical officer who was, beyond question, not an employee but who agreed to treat some public patients in return for a right of access to the hospital to treat private patients. The outcome of that case depended on whether there was negligence but in the course of his judgement Kirby J said
In my opinion, these by-laws, for mutual benefit, tied Dr Chambers inextricably into the organisation of the hospital. True, he could not be directed on how to “hold the knife” (Cassidy). But neither could the other professional staff be so directed. He was integrated into the discipline and direction of the hospital. What he did in his rooms was his affair. But when he came into the hospital, he was part of the hospital. When working on its premises, he was part of its integrated medical team. Nothing could demonstrate this more clearly than the consent form which patients (including Mrs Ellis) were required to sign upon their admission to the hospital. It is set out in full in the judgment of Samuels JA. It includes the statement: “I understand that an assurance has not been given that the operation will be performed by a particular surgeon.”
His Honour would have held the hospital vicariously liable if the other judges had agreed that there had been negligence.
In the context of this discussion, let us assume Company A offers to provide event health services to an event organiser. Rather than employ health staff Company A relies on a system of ‘contractors’. Company A’s liability will depend on many things. First how is Company A described in the contract; if it is said that Company A is a broker and will arrange contractors that is different that Company A saying it will provide the service. Are the contractors wearing their own uniform, so each medic has a different jacket and badge or are they wearing the logo of Company A? Does each medic says to Company A ‘this is what I charge’ and Company A then sums those amounts to charge the event organiser or does Company A quote the event organiser and say to the contractors ‘you get paid $x/hour’. Do the ‘contractors’ submit an invoice to Company A or the event organiser or do they submit a time sheet? Who determines when and where they work? To what extent are they expected to comply with Company A’s policies and procedures. The more they are ‘integrated’ into Company A the less chance Company A has to avoid a claim of vicarious liability.
If they are independent contractors and have their own professional indemnity insurance there could be lots of fights between the insurers for the event organiser, Company A and the practitioners but that would all happen ‘behind the scenes’.
But vicarious liability is only relevant to a civil claim for damages if there is a default by one of the medics. It’s a different matter altogether from either a medic criminally and sexually assaulting a patient or just the reputation problem if the event organiser discovers that one of the medics has a sexual assault conviction, or does not have the qualifications claimed, or has been barred from working in the field following professional discipline proceedings (eg perhaps they have been struck off as a paramedic).
One would expect that it would be an express term of the contract between the event organiser and Company A, but even if it is not express it would be implied, that Company A will only provide people who are qualified to do the job (so not frauds and not struck off). As noted in the original post there is perhaps no automatic reason to disqualify a person with a prior conviction. What would be relevant would be where a person needed a working with children or vulnerable persons check and was not able to get it.
In short Company A cannot ‘hide’ behind the sham of independent contractors anymore than Vabu Pty Ltd could. If the event organiser goes to Company A and says ‘I need event health services’ they are relying on Company A to provide that exercising reasonable care and with implied terms that the services they are providing, including the people, are fit for purpose. If the medics turn up when directed by Company A, are paid according to the terms set by Company A and wear Company A’s uniform then they are Company A.