The ODCO Story

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.