New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 5 (3))
The following persons are taken to be employees--
(a) Any person (not being registered as a milk vendor to sell milk or cream from a vehicle or any other conveyance) who sells or delivers for the purpose of sale milk or cream from any vehicle. (In such a case, the employer is taken to be any person whose milk or cream is so delivered or who supplies the milk or cream so delivered.)
(b) Any person (other than the owner or occupier of the premises or a bona fide cleaning contractor employing labour for the purpose) who performs any work of cleaning premises or a part of premises for which work, if performed by an employee, a price or rate is for the time being fixed by an industrial instrument. (In such a case, the owner or, where there is an occupier other than the owner, the occupier of the premises is taken to be the employer.)
(c) Any person (other than the owner or, where the owner is not occupying the building or premises, the occupier of any building or premises or a bona fide contractor employing labour for that purpose) who performs carpentry or joinery or bricklaying work upon any building or premises the erection, construction, repair, alteration or maintenance of which is being carried out under a contract between the owner or occupier and a contractor. (In such a case, the last-mentioned contractor is taken to be the employer. This provision does not apply to work of repair, alteration or addition to existing premises used as residences.)
(d) Any person (other than the owner or, where the owner is not the occupier, the occupier of any building or premises or a bona fide contractor employing labour for that purpose who has entered into a contract with such owner or occupier or with a bona fide contractor who has contracted to erect, renovate, repair or maintain such building or premises) who performs the work of house or general painting. (In such a case, the owner or occupier is taken to be the employer. This provision does not apply to work of repair, alteration or addition to existing premises used as residences.)
(e) Any person (not being a bread manufacturer) who performs the work of delivery of bread or bread rolls on any bread round from a vehicle, conveyance or receptacle. (In such a case, the employer is taken to be the bread manufacturer who manufactured, prepared or baked the bread or bread rolls.)
(f) Any person (not being the occupier of a factory) who performs outside a factory any work in the clothing trades or the manufacture of clothing products, whether directly or indirectly, for the occupier of a factory or a trader who sells clothing by wholesale or retail. (In such a case, the occupier or trader is taken to be the employer.)
(g) Any person (in this paragraph referred to as
"the contractor" ) who, in response to an advertisement or other notification placed by a person (in this paragraph referred to as
"the principal" ) requiring the delivery or supply of timber to the principal or as directed by the principal, notifies the principal in writing that the contractor will deliver or supply the whole or part of the timber and who engages in the work of cutting, delivering and supplying timber to the principal or at the principal's direction until the principal by written notice withdraws the offer to accept timber so delivered or supplied. (In such a case, the principal is taken to be the employer.)
(h) Any person (other than the owner or, where the owner is not occupying the building or premises, the occupier of any building or premises or a bona fide contractor employing labour for that purpose) who performs the work of plumbing, draining, plastering, fibrous plaster fixing or fixing of gypsum plaster board on any building or premises the erection, construction, repair, alteration or maintenance of which is being carried out under a contract between the owner or occupier and a contractor. (In such a case, the last-mentioned contractor is taken to be the employer. This provision does not apply to work of repair, alteration or maintenance of existing premises used as residences.)
(i) Any person (not being a bona fide contractor employing labour for that purpose) who, as a trade or occupation, performs the work of fitting blinds in or on a building (including the work of taking measurements for blinds, or of assembling or selling blinds, in connection with their fitting) if the blinds or component parts have been supplied to the person by the manufacturer or a distributor of the blinds or components under an agreement for their supply for the purpose of being fitted by the person in the course of his or her trade or occupation. (In such a case, the manufacturer or distributor is taken to be the employer.)
(j) Any person (other than an excluded person) who performs the work of managing or supervising swimming activities at a swimming centre under the care and control of a local council pursuant to a contract with the local council. (In such a case, the local council is taken to be the employer).
(k) Any person who owns or hires a vehicle and drives the vehicle when it is being used for the carriage of ready-mixed concrete (or of materials to be made into ready-mixed concrete on the vehicle) if the concrete or materials have been supplied to the person for their delivery by a manufacturer who carries on the business of manufacturing, supplying or distributing ready-mixed concrete. (In such a case, the manufacturer is taken to be the employer.)
(l) Any person (other than an excluded person) who owns a motor lorry and drives the motor lorry when it is being used for road work under a contract between the person and Transport for NSW (or between them and others). (In such a case, Transport for NSW is taken to be the employer.)
(m) Any person of a class prescribed by the regulations (whether or not of the same kind as the other classes of persons referred to in this clause). Any such regulation must specify the person who, for the purposes of this Act, is taken to be the employer of any person of a class so prescribed.
(1) For the purposes of--(a) clause 1 (f):
"factory" has the same meaning as "Factory" had in the Factories, Shops and Industries Act 1962 immediately before that definition was repealed by Schedule 2.4 [2[#93] to the Occupational Health and Safety Act 2000 , but does not include an office, building or place (whether or not required to be registered as a factory under that Act) in which mechanical power of less than 0.75 kilowatt is used, and
"occupier" has the same meaning as "Occupier" had in the Factories, Shops and Industries Act 1962 immediately before that definition was amended by Schedule 2.4 [3[#93] to the Occupational Health and Safety Act 2000 ,(b) clause 1 (g)--(i) the notice of intention by the contractor to deliver or supply timber must be in the prescribed form and must indicate the nature of the work to be undertaken and the locality where and time within which the work is to be carried out,(ii) the notice may be given personally or by letter posted to the principal at his or her place of business or usual address,(iii)
"timber" includes sleepers, piles, poles, girders, logs and pit timber, and
"cutting" includes felling, sawing, obtaining, preparing and doing any related work in connection with timber.
(1A) For the purposes of clause 1 (j)--(a)
"excluded person" means--(i) a bona fide contractor employing labour for the purpose of performing the work referred to in clause 1 (j), or(ii) a person who performs that work as a partner in a bona fide partnership (whether or not employing labour for the purpose), or(iii) an employee of any such contractor or partnership.(b)
"contract" includes any lease, licence or arrangement.(c)
"swimming centre" means any public facility used predominantly for the purpose of swimming.(d) a swimming centre does not cease to be under the care and control of a local council or councils because it is managed on behalf of the council or councils by a committee appointed by the council or councils under the Local Government Act 1993 .
(2) For the purposes of clause 1 (l)--(a)
"contract" includes any agreement or arrangement,(b)
"motor lorry" means any motor vehicle (whether or not in combination with any trailer) that is constructed principally for the conveyance of goods or merchandise or for the conveyance of any kind of materials used in any trade, business or industry, or for use in any work whatsoever other than the conveyance of persons, but does not include a motor cycle or a tractor,(c)
"road work" means the carriage of goods or materials for use in (or for the purpose of) the construction or maintenance of roads by or on behalf of Transport for NSW,(d)
"excluded person" means--(i) a person who employs another to drive or assist in driving a motor lorry when it is being used for road work (except where the person employs another during his or her absence on holidays or long service leave or due to sickness, accident or other reasonable cause),(ii) a person (whether or not a common carrier) who is engaged in the business of transporting for the public generally freight in containers,(e) a person
"owns" a motor lorry if--(i) the person alone (or with others) owns the motor lorry, or(ii) a proprietary company owns the motor lorry and the person is a director of the company or owns not less than 20 per cent of the issued shares of the company, or(iii) the person has the use of the motor lorry under a contract,(f) a person
"employs" another if that other person is employed--(i) by the person alone (or with others), or(ii) by a proprietary company and the first-mentioned person is a director of the company or owns not less than 20 per cent of the issued shares of the company,(g) a person who has a beneficial interest in a motor lorry or shares is taken to be the owner of the motor lorry or shares,(h) ownership or employment by any one or more members of a partnership is taken to be ownership or employment by all members of the partnership,(i) a contract made with any one or more members of a partnership is taken to have been made with all the members of the partnership.
(1) In any proceedings for a breach of this Act or of an industrial instrument or for the recovery of money under this Act brought against any person taken because of this Schedule to be an employer, it is a defence if the person required to be taken to be an employer joins as a party to the proceedings some other person whom he or she alleges to be the employer and proves that, apart from the operation of this Schedule, that other person was at the relevant time the employer.
(2) The other person is to have the right to appear and defend the allegation made by the person taken to be an employer and, if the other person is held to be the employer, the same orders may be made against the other person and the other person is to be in the same position as if the proceedings had been originally instituted against the other person at the time they were instituted against the person required to be taken to be the employer.