Alternative Law Journal
Non-citizens, illegal migrants and sex industry workers are often employed in situations that contravene immigration and criminal laws. When injured or dismissed these workers may seek the assistance of the courts to decide their entitlement to compensation. Frequently the defence raised to such claims is that these workers have no entitlements to compensation because their contract of employment is ‘tainted by illegality’. A contract of employment may be unenforceable if it is done for an illegal purpose or in an illegal manner or if the contract is expressly or impliedly prohibited by statute. However, recently compensation and industrial tribunals have tended to include these hitherto unprotected workers under the protective umbrella of a variety of employment laws. This article considers the law as it relates to the employment, dismissal and injury compensation of non-citizens and illegal migrants, as well as some of the employment rights of those working in the sex industry.
In general, the early cases dealing with illegal contracts in the employment context took an approach that disadvantaged employees. The concept of illegality was first used by employers to deny employees’ benefits or entitlements. Often it was a successful technical defence not related to the substance of the claim made by the employee. For example in Kemp v Lewis  3KB 543 the court decided against an injured worker because of the manner in which the worker was paid. The manner of payment bore no relationship to the risk of injury but was prohibited by the Truck Act. Cozens-Hardy LJ said ‘that cannot be a good contract of service under the Workmen’s Compensation Act which is an illegal or void contract under the Truck Act’. The decision was made notwithstanding that the intent of the Truck legislation was to prevent exploitation of employees by paying in-kind instead of cash. Similarly, in a line of early Australian cases employers were able to avoid paying compensation to injured child workers on the ground that the contract of employment was void for being technically in breach of child employment laws.
Perhaps because of the harsh results of these early cases some states legislated to allow compensation, in certain circumstances, to persons employed under apparently illegal contracts of employment. These amendments give compensation tribunals discretion to treat illegal employment contracts as enforceable. For instance s.84H of the Workers Compensation and Rehabilitation Act 1981 (WA) provides:
If in any proceedings for the recovery under this Act of compensation for a disability it appears to a dispute resolution body that the contract under which the disabled worker was engaged at the time when the disability occurred was illegal, the dispute resolution body may, if, having regard to all the circumstances of the case it thinks proper to do so, deal with the matter as if the disabled person had at that time been a worker under a valid contract.
Similar provisions appear in s.24 of the Workers Compensation Act 1987 (NSW) and its predecessor s.40 of the Workers Compensation Act 1926 (NSW).
In Erisir v Kellog (Australia) Pty Ltd (1987) NSWCCR 92, Burke J outlined the genesis of the discretion provisions in the following way. Kemp v Lewis illustrates the case where a contract is void ab initio or illegal at the outset because the terms and conditions of the employment are forbidden by statute. Even where the English courts were given discretion to treat an illegal contract as valid it may not have been exercised if the worker had knowledge that the contract was illegal and actively sought the arrangement or there was some other element of moral turpitude on the part of the worker. However, viewed in a more modern context, the early English cases show little appreciation of the imbalance of bargaining power as between employer and employee. Although an employee may have knowledge of some illegal practice, such as inappropriate tax deductions from salary, that employee may not object to such practices for fear of loosing a chance of employment. Therefore, a statutory discretion may be necessary to ensure that justice is done between the parties.
The question of discretion only arises where the contract at issue is illegal. In Erisir the applicant was employed by the Department of Immigration as a welfare worker but also worked on a casual basis for Kellogs. Burke J observed: ‘The Commonwealth Public Service Act contains a proscription against public servants moonlighting, engaging in other employment either concurrently or intermittently or at any time’. However, Burke J noted that the fact that a statute proscribed the applicant from doing a particular activity, such as entering into another contract of employment, did not necessarily make that contract illegal. The proscription is against the employee and does not affect any other contract that is otherwise legal. This implies that the appropriate remedy in such a case is to take disciplinary proceedings against the worker in relation to the primary contract of employment, not to challenge the validity of the second contract. In the result, the contract of employment with Kellogs was not, according to Burke J, illegal and consequently there was no need to exercise the statutory discretion.
There have been several recent examples of compensation claims by people who have breached provisions of the Migration Act 1958 (Cth). The first such case was WorkCover Corporation v Liang Da Ping (unreported SC (SA), 30 March 1994) in which an illegal immigrant who had sustained a disability was denied compensation on the ground that his contract of employment was illegal. The South Australian Supreme Court referred to s.83(2) of the Migration Act 1958 (Cth) which provided:
Where a person who is an illegal entrant performs any work in Australia without permission, in writing, of the Secretary, of the Department of Immigration the person commits an offence …
The Court found that, on the basis of the above provision, any contract entered into by an illegal entrant was illegal and therefore void. If the agreement was void then the applicant could not be a ‘worker’ for the purposes of workers compensation as no contract of employment existed.
Later, in Fitzgerald v F.J. Leonhardt Pty Ltd  HCA 17; (1997) 71 ALJR 653 the High Court of Australia examined the legality of contracts entered into contrary to the Water Act 1992 (NT). The High Court noted that even if the contract involved performance of work that was in a breach of a statute, this did not necessarily mean the contract was illegal. The purpose of the particular statute may be served by the imposition of a penalty, which would be sufficient to protect the public. In other words, a party in breach of a provision may be penalised for that breach, but nevertheless be entitled to pursue any contractual rights under the agreement.
The New South Wales Court of Appeal applied the High Court’s reasoning in Fitzgerald in Non-Ferral (NSW) Pty Ltd v Taufia (unreported SC (NSW) 27 March 1998). Taufia involved a set of facts almost identical to those in the earlier case of Da Ping, but the Court of Appeal reached the opposite conclusion and held that the injured worker was entitled to workers compensation notwithstanding that he was an illegal entrant at the time that he became disabled. Relying on Fitzgerald, the New South Wales Court of Appeal rejected the argument that the contract entered into was illegal and was satisfied that the penalty imposed under the Migration Act 1958 (Cth) (namely a fine of $5000) was sufficient to protect the public. Rendering the contract of employment illegal would not further the objects of the Migration Act 1958 (Cth). In addition it was observed that a failure to allow compensation would be disproportionate to the seriousness of the unlawful conduct in this case.
A conclusion similar to Taufia was reached by Burke J in Viliami v National Springs, A Division of Hendersons Federal Spring Works Pty Ltd (1993) NSWCCR 453 who found that there was nothing illegal about the objects of a contract for unskilled labouring work entered into by worker who was in breach of s.83 of the Migration Act 1958 (Cth).
Given the reasoning in Fitzgerald, Taufia and Viliami, the earlier decision in Da Ping now appears to have been wrongly decided. The divergence of Da Ping and the other decisions is not explicable by reason of any difference between the compensation legislation in South Australia and New South Wales. The issue in all three cases was identical, namely whether the Migration Act 1958 (Cth) rendered the contract of employment illegal. The best view is that it does not. It follows that even if a person is engaged in work in breach of the Migration Act 1958 (Cth), compensation will be payable where a work disability arises provided that the work that they are performing is otherwise legal. Where the nature of the work performed is illegal a closer examination of the circumstances may be warranted.
Some of the policy issues emerging from the cases involving illegal immigrants are whether an employer who knowingly employs an illegal immigrant should be able to aggravate the impropriety by denying that worker the protection of compensation laws and whether an employer should be able to avoid payment of insurance premiums by failing to declare the correct numbers of workers?
In Chen v Allied Packaging Co Pty Ltd Limited (1997) 73 IR 53, the Industrial Relations Court dealt with an appeal of an application for re-instatement under s.170DE of the Workplace Relations Act 1996 (Cth). The applicant was employed as a guillotine operator and suffered an injury to his back at work. After advising his employer that he was to be off work for at least two weeks, his employment was terminated. On the face of it the termination was harsh, unjust and unreasonable and in breach of s.170CK(2) of the Workplace Relations Act 1996 (Cth), which protects against termination due to temporary illness. Chen, however, did not hold a permit to work in Australia and was an ‘unlawful non-citizen’ for the purposes of the Migration Act 1958 (Cth). Section 235(3) of that Act provides;
(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.
Chen was in fact granted permission to work after his termination, but this did not prevent the Federal Court from dismissing his application for re-instatement. Wilcox J noted that any action to continue to employ Chen after the employer was made aware of Chen’s unlawful non-citizen status but before a visa was granted would have itself been unlawful. The Court accepted that the employer had a valid reason to terminate Chen because of the breaches of the Migration Act, and further opined that it did not have power to order re-employment (as opposed to re-instatement).
The application in Chen seems to have been limited to the issue of reinstatement. Illegality of contract was not argued and compensation was not sought. It does appear that the court was prepared to accept that a valid contract did exist. Therefore, the Chen case raises the neat question whether compensation for unfair dismissal could have been payable in lieu of reinstatement. However, compensation is generally ordered in lieu of reinstatement where the employment relationship has broken down beyond repair. If re-instatement was simply not possible by reason of the operation of the Migration Act, arguably compensation could not be in lieu of an order that could not be made. Section 170CN of the Workplace Relations Act 1996 (Cth) does not impose such limitations, in other words an order for compensation appears not to depend on a finding that re-instatement is inappropriate and the application can be made for compensation alone. This does give rise to speculation that illegality of a contract of employment could deprive a worker/employee of statutory rights to re-instatement and compensation for unfair or unlawful dismissal. However, as discussed below, in at least one case involving an illegal contract in the sex industry a claim for compensation for unfair dismissal was successful.
Although seemingly unrelated, common issues do arise in claims for compensation brought by illegal immigrants and similar claims by sex industry workers. For example, the question of whether an illegal contract is a good defence to a claim for compensation was considered by the Federal Court in Barac v Farnell  FCA 1389; (1994) 53 FCR 193. In that case the injured employee worked in a brothel, apparently as a receptionist. The work included opening the premises for business each morning, keeping work sheets and financial records, making appointments for clients and cleaning bedrooms. A claim for compensation following an accident in 1992 was denied on the ground that the applicant was employed under an employment contract that was illegal for offending public policy. However, the Federal Court found that neither statute law nor public policy made the contract of employment void for illegality. Beaumont J (at 207) observed:
It would be an unjust outcome, if by shooting the messenger as it were, those who conducted the business (that is the brothel) should be able to set up a defence that their own immoral purposes carried on for their profits may be relied upon to avoid liability to a worker performing routine duties when the worker is injured in the course of her duties. For the court to permit a claim for compensation to be defeated because of the immoral character of the activities of the employer’s business would, in my view be entirely without merit. Put differently, such a defence is itself contrary to the public interest in ensuring that claims for workers compensation are dealt with fairly and equitably.
Although in Barac’s case the worker did not supply sexual services, the views of Beaumont J might also prevent a contract for sexual services being rendered void.
Contracts for sexual services may or may not be illegal, depending on which state’s law applies and the effect of other policies. For example, in New South Wales, where prostitution is a licensed and regulated activity and legal in particular areas, the question of legality of contract may not arise. In contrast, in Western Australia, where prostitution is still illegal, the question of legality of contract could be an issue in any claim for compensation.
However, even in Western Australia prostitution is regulated to some degree by what has been known as the ‘containment policy’. Under this policy the Commissioner of Police permits the continued operation of brothels notwithstanding that prostitution is contrary to the Police Act 1892 (WA) and the Criminal Code 1913 (WA) and the police do have powers to close down brothels under a number of Acts. The containment policy affected the outcome of a claim for compensation in Phillipa v Carmel. In that case the applicant was engaged to provide sexual services for men by the respondent, the madam of a brothel in Kalgoorlie, Western Australia. The respondent terminated the applicant’s contract in November 1995 and the applicant claimed compensation for unfair dismissal under the Industrial Relations Act 1988 (Cth). The judicial registrar determined that the respondent had sufficient control over the applicant to categorise the relationship as one of service. As to the question of the legality of the contract, it was held that even though the work performed under the contract was contrary to the Police Act (WA), because no prosecution had taken place due to the ‘containment policy’ the contract should not be declared void by reason of the strict statutory breach. In relation to the issue of public policy the registrar also declined to hold the contract illegal and void, observing that this would allow the madam to profit by this defence as foreshadowed by the Federal Court in Barac. The registrar also observed that both the applicant and respondent were paying taxation on their earnings; a factor inconsistent with holding the contract to be inoperative. Compensation for unfair dismissal was awarded.
Drawing these threads together, the discretion to disregard illegality of contract is an important development in the law on compensation for unprotected workers. As Burke J observed in Viliami, ‘surprising, but I do not think there is one case where the discretion has ever failed to be exercised in favour of a worker’. The kinds of considerations mentioned by Beaumont J in Barac should be uppermost in the minds of decision makers when exercising that discretion to award compensation in the event that it is determined that the contract was illegal. In Taufia Sheppard AJA (at 163–4) listed various matters that might be taken into account in exercising the discretion, including whether the worker disadvantaged any person by undertaking the employment; whether the work itself was illegal and whether the employer was aware of the worker’s breach of statute or law. Applying these principles to sex industry workers it may be that the work itself is illegal in that it breaches a statute, but this factor should be neutralised by the fact that the employer would also be aware of any breach, and as Barac suggests, it would be immoral for the employer to profit from their own illegal conduct. Likewise, in accordance with Barac, it is hard to see that any other worker is disadvantaged by the employment of any one sex worker. The authorities suggest that a workers compensation claim for sex industry workers is sustainable and acceptable given current public attitudes. As discussed below there are good policy reasons, outside of the compensation context, why this should be so.
An interesting sequel to the above cases arises in relation to the quantum of compensation payable if the contract is not regarded as illegal. In Viliami Burke J declined to award payments for loss of earnings on the basis that the worker was not entitled to work in Australia. He noted that by reason of the Migration Act the worker was not entitled to work and therefore could not earn any wages. Burke J held therefore that he was not entitled to weekly payments. An award for permanent impairment was made, however, on the basis that this did not require a calculation that took into account earning capacity. Entitlement for permanent impairment is calculated having regard to the percentage loss of use of body part function. Based on this logic a sex worker who sustained injury in Western Australian may not be entitled to weekly payments on the grounds that they should not be doing the work, but would be entitled to a lump sum payment for any permanent loss. This approach was applied again by Burke J in Taufia, but it does seem inconsistent given that the contracts in each case were found to be legal. In contrast, Armitage J in Kaufusi v Supre Pty Ltd (1999) 18 NSWCCR 607 calculated the worker’s loss of earnings as if he was working under a valid contract in Australia. This approach is consistent with the finding that the contract of employment was not illegal. Further, if a duty of care exists despite some illegal act, damages should be assessed in the normal way taking account of the plaintiff’s loss of earning capacity. However, payment for incapacity is linked to the inability to work. In the case of illegal entrants and non-citizens the inability to work is a consequence of the combination of statutory restrictions and the work injury. Therefore, statutory restrictions are relevant to the calculation of compensation.
There is no reported case of a compensable claim for weekly payments by a prostitute, but the potential for this to arise raises the kinds of issues that have been touched on in the illegal immigrant cases. If the work was illegal, should it be taken into account for the purposes of assessing incapacity? If compensation is payable on the basis that any illegality is not considered, should there be any different considerations when assessing incapacity? It is worth observing that given the differences in laws in relation to prostitution across states, it may be that weekly payments of compensation could be paid to sex industry workers in some states and not in others. For example, sex industry workers in New South Wales would, on the basis of the above cases, be entitled to weekly payments, because their work has been regulated rather than prohibited.
If sex workers are entitled to workers compensation, what kinds of claims could be made? All states have legislated various levels of compensation for permanent loss of use of various body parts and senses, often referred to as ‘impairment’. Most states have made provision for payment of lump sums for loss of genitals, loss of sexual organs and/or breasts, although the terminology varies between states. In Western Australia, for example provision is made for ‘loss of genitals’. It is clear that ‘loss of’ includes ‘loss of use of’ (amputation is not necessary) and ‘loss of genitals’ includes loss of the ability to engage in intercourse. Further, a spinal or other injury that causes the use of other sexual organs to be diminished or sexual intercourse to be painful can provide the basis for an assessment under a provision covering ‘loss of genitals’ or similar terminology. The loss of use of sexual organ/genitals must be permanent for there to be any entitlement under the relevant legislation.
In addition some states provide specific benefits for workers who contract HIV/AIDS. In other states, such as Western Australia, although there is no specific coverage for HIV/AIDS, the provision for payment of a lump sum where there is likely to be an indefinite period of incapacity may apply.
Most cases in relation to loss of genitals or sexual function concern males. However some decisions of the Compensation Court of New South Wales have highlighted issues relating to loss of genitals assessment for women. In Waugh v Newcastle Mater Misericordiae Hospital  NSWCC 32, it was held that the ‘female sexual organs’ (for the purpose of the NSW tables) included the ovaries, fallopian tubes, uterus, the vagina and the vulva. In that case the worker sustained a back injury resulting in loss of use arms and legs and inability to have sexual intercourse. The loss of use of the vagina was assessed as a 20% loss of the sexual organs. In Mitchell v Raynep Pty Ltd  NSWCC 28 a physical assault damaged the victim’s sexual organs and the losses were distributed in this way: 50% for loss of use of vagina and vulva, 25% for loss of use of uterus and 12.5% for loss of use of fallopian tube and ovary on each side. Neilson J also observed that despite removal of the uterus after menopause the applicant was entitled to an assessment for loss of that item.
The above cases are especially relevant to the sex industry. If the worker sustains an injury or suffers a disease that permanently affects the genitalia or reduces sexual function there may be an entitlement to a lump sum payment. In addition even if the injury or disease is not primarily to the genitalia, but affects sexual function — such as a spinal injury — an entitlement may be available. The principles developed from the above cases have application wherever a similar injury occurs and would not be restricted to the sex industry.
It appears from recent decisions in compensation cases that tribunals are reluctant to find contracts of employment illegal either by reason of the breach of a statute or as being contrary to public policy and are more inclined to hold the employer liable for compensation payments. There are good policy reasons for this. First, it is likely that employers of illegal entrants and brothel owners are uninsured for compensation purposes. They would in the first instance pay any successful claims directly. The payment of compensation directly by the employer without indemnity is a suitable sanction against the employer. On the other hand, where the employer is uninsured and cannot pay, the worker usually has access to a general fund established for such purposes. The administrators of the fund have rights to recover from the employer compensation paid out by the funds, but if the employer is insolvent the community bears that cost. Second, often workers in these circumstances have special disadvantages, are prone to exploitation and are likely to under-report claims. The reporting of such claims highlights inadequate insurance coverage for some employers and also brings to light areas where occupational safety issues should be addressed. As to the last point, it is noteworthy that the New South Wales WorkCover has promoted literature on brothel management and safety, primarily because prostitution in that state is subject to legal controls. Even in those states where prostitution is not legal the potential for claims has emerged due to cases discussed above. It follows that employers in the sex industry should be insured against potential claims. The dilemma of this situation is obvious and unfortunate. In states such as Western Australia, containment policies apply in duplicitous circumstances, making open declaration of the sex industry activity difficult. Conversely WorkCover and like authorities responsible for work safety may be neglecting their public duty if they fail to investigate work safety and premium collection in the sex industry. The apparent illegality of the sex industry may in fact contribute to the risk of injury by creating incentives to avoid occupational health and safety issues.
Another matter for consideration may be the rehabilitation and return to work of disabled sex workers and illegal immigrants. All states have provisions which require rehabilitation of disabled workers. In most states criminal sanctions apply to employers who fail to provide suitable duties to workers who are able to return to work. Obviously in the case of illegal immigrants the return to work provisions would have to be read subject to the Migration Act 1958 (Cth), so as to render the former nugatory. In the case of sex workers, rehabilitation of these workers would include rehabilitation into other forms of employment. The concept of return to work on light duties might raise some interesting questions for injury management providers. Return to work provisions may be rendered inapplicable if work in the industry is contrary to law, but if the work is no longer prohibited then it will present interesting challenges. The exploitation of sex workers has been well documented, but not the health and safety issues in the sex industry. It may be that some bureaucrats would not welcome changes in the laws in relation to the sex industry as this would place increased demands on their resources. Consider for example the delicate issues relating to inspection of premises used by sex workers; the taxation issues which might arise if incomes had to be more openly disclosed and the interesting questions of premium setting for the sex industry based on perceptions of risk. These issues would have to be dealt with before changes to sex industry practices are made.
Recent developments in the law mean that workers toiling under apparently illegal contracts of employment or who, in the course of their work, are in breach of statutory provisions are more likely to be able to make a successful compensation claim. There is an increased level of judicial tolerance for contracts performed in breach of statutes and the field of work that is contrary to public policy seems to be narrowing. However, entitlement to weekly payments is an unsettled question and subject to conflicting policy rationales. If the contract is legal, there should not be any impediment to payment of weekly income support. The same logic would also apply if the contract was illegal but compensation is paid by operation of the Tribunal discretion.
Due to the manner in which permanent impairment is assessed it is conceivable that workers in the sex industry may seek to utilise those decisions that have enlarged the potential for claims for loss of sexual functions. Given the potential for claims in the sex industry, consideration needs to be given to the enforcement of insurance payments, occupational health and safety issues and general conditions of work. Insurance administrators may need to adjust their practices to take account of the need to inspect brothels. Return to work and rehabilitation provisions may present a special challenge in these areas. There is considerable potential for workers in the sex industry to be exploited due to the uncertain legality of its operations; providing statutory protection through occupational and workers compensation laws may assist weaker contracting parties in asserting their rights.
[*] Robert Guthrie teaches in the School of Business Law Curtin University of Technology.
© 2002 Robert Guthrie (text)
© 2002 Stuart Roth (cartoon)
 Wilkinson v Osborne  HCA 92; (1915) 21 CLR 89 per Issacs J at 98. This concept is not limited to criminal activity and may include contracts which are prohibited by other law and those that are unenforceable because either their objects or their performance or underlying purpose is socially undesirable or offend public policy. See Stevens v Keogh  HCA 16; (1946) 72 CLR 1 at 28; Australian Broadcasting Corporation v Redmore Pty Ltd  HCA 15; (1989) 166 CLR 454 at 462; Cunningham v Cannon  VicRp 59; (1983) 1 VR 641; Fitzgerald v F.J. Leonhardt Pty Ltd  HCA 17; (1997) 71 ALJR 653; Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd & Ors  HCA 42; (1978) 139 CLR 410.
 See also Macken, J., O’Grady, P. and Sappideen, C., The Law of Employment, Law Book Company, 4th edn, 1997, pp.87-8.
 Abberton v Mcleod  WCR 176; Fennelly v Hayes  WCR 197; Tierney v Stafford  WCR 90 and Blencowe v Day  WCR 251; but see Cunningham v Cannon  VicRp 59; (1983) 1 VR 641.
 No such provisions exist in the Workers Rehabilitation and Compensation Act 1988 (Tas), the Workers Rehabilitation and Compensation Act 1986 (SA), Accident Compensation Act 1985 (Vic) and the Queensland WorkCover Act 1996 (Qld). In states other than Western Australia and New South Wales a finding of illegality could still be fatal to a workers compensation claim.
 Hardcastle v Smithson (1933) 26 BWCC 152.
 Cluff v Finemores Transport Pty Ltd  1 NSWLR 354.
 Phang, A., ‘Of Illegality and Presumption: Australian Departures and Possible Approaches’, (1996) 2(1) Journal of Contract Law 53.
 (1996) AIRC Print 960433 433/96, 10 September 1996.
 See in relation to the need for recognition of changes to public attitudes; Westpac Banking Corporation v Bower  ACTSC 21 where the Supreme Court of ACT held that a contract to loan money to a brothel owner on security of a mortgage on premises known to operating as a brothel was enforceable notwithstanding that the bank knew the purpose of the loan. Interestingly the Court held the bank was entitled to possession of the brothel!
 Henwood v Municipal Tramways Trust (SA)  HCA 35; (1938) 60 CLR 438.
 For example, Workers Rehabilitation and Compensation Act 1988 (Tas), s.71, item 12 Loss of Genitals; Workers Rehabiliation and Compensation Act 1986 (SA), Schedule 3, item for loss of genital organs; WorkCover Queensland Regulations 1997 (Qld), Schedule 2 Clause 4(4), item 4606 Loss of sexual function (both impotence and infertility) and item 4607 Loss of genital organs; Workers Compensation Act 1987 (NSW), Division 4, Table Loss of sexual organs, loss of both breasts, loss of one breast, HIV infection and AIDS; Accident Compensation Act 1985 (Vic), s.98 items for total and partial loss of sexual organs, total loss of both breasts, and total loss of one breast.
 Skywest Airlines Pty Ltd v Barnett unreported CM (WA) 60/00 20 October 2000.
 Malcolm v Roads & Traffic Authority  NSWCC 24 (5 September 1995) affirmed (95040618) 4 July 1996; Department of Public Works v Morrow (1986) 5 NSWLR 166; Mansell v Bellorana Hostel  NSWCC 13 (24 March 2000); Waugh v Newcastle Mater Misericordiae Hospital  NSWCC 32 (23 October 1996).
 D’Aleo v Ambulance Service of NSW (96040169), 12 December 1996.
 See s.67 of the Workers Compensation and Rehabilitation Act 1981 (WA).
 These themes sit comfortably with a developing judicial approach towards equality and fair dealing in contractual dealings, exemplified by High Court decision in relation to unconscionability and good faith although the Court has not yet taken the step of implying an obligation of good faith and fair dealing into all contracts. For example Commercial Bank of Australia v Amadio  HCA 14; (1983) 151 CLR 447 and Louth v Diprose  HCA 61; (1992) 175 CLR 621, the latter being a case in relation to special disability, and see more recently the High Court on the issue of good faith Royal Botanic Gardens and Domain Trust v South Sydney Council  HCA 5 (14 February 2002).
 This has recently received considerable publicity. See the information resources package issued by WorkCover, NSW General Manager, 21 January 2002 launching new occupational health guidelines for the sex industry. See also the Joint publication by WorkCover and NSW Dept of Health, ‘Health and Safety Guidelines for Brothels in NSW’.
 See Meretix, M., ‘Occupational Health and Safety Concerns in the Legal Nevada Brothels’ (2000) 7 Safety at Work 15-18.