SafeWork NSW v Momentum Consulting Group Pty Ltd - [2025] NSWDC 400

District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400
Hearing dates: 3, 4, 5, 6, 7, 18 and 19 March 2025; 31 July 2025
Date of orders: 02 October 2025
Decision date: 02 October 2025
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 I find the defendant guilty of the s 33 offence.

Catchwords:
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker
WORK HEALTH AND SAFETY – use of mobile plant - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – workers not given adequate training

Legislation Cited:
Work Health and Safety Act 2011

Cases Cited:
Allen v United Carpet Mills Pty Ltd [1989] VR 323
Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Bergin v Stack (1953) 88 CLR 248
Boucher v G J Coles Co Ltd (1974) 9 SASR 495
Brambles Holdings Ltd v Carey (1976) 15 SASR 270
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998)
He Kaw Teh v R (1985) 157 CLR 523
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
Proudman and State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721
Proudman v Dayman (1941) 67 CLR 536
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80

Texts Cited:
NSW WorkCover Code of Practice, Work Health and Safety Consultation, Co-Operation and Co-Ordination, December 2011
Safe Work Australia - Labour hire: duties of persons conducting a business or undertaking guide - February 2020
Safe Work NSW - Host Employer (PCBU) Induction Checklist - August 2021
SafeWork NSW - Labour Hire Agencies and Group Training Organisations Work Health and Safety Self-Assessment Checklist - August 2021

Category: Principal judgment
Parties: SafeWork NSW (Prosecutor)
Momentum Consulting Group Pty Ltd (Defendant)
Representation:
Counsel:
A Mykkeltvedt (Prosecutor)
M Baroni (Defendant)
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Mills Oakley Lawyers (Defendant)

File Number(s): 2024/29596
Publication restriction: None

JUDGMENT

Introduction

Momentum Consulting Group Pty Ltd (Momentum or the defendant) has pleaded not guilty to an offence that as a person with a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act) it failed to comply with that duty, contrary to s 33 of the Act.
The defendant operates a labour hire business. Zayne Krupowicz and Alfred Fifita were employees of the defendant, who had been placed to work with a host employer, Saveba Pty Ltd trading as Coco Republic (Saveba), at its retail furniture warehouse at 2-6 Dolerite Way, Pemulwuy (the warehouse). At approximately 7.03pm on 9 February 2022, Mr Krupowicz was operating an electric pallet rider when he was involved in a collision with a pallet rider being operated by Mr Fifita in an area of the warehouse known as the hardstand. Mr Krupowicz and Mr Fifita had not been given adequate training on the operation of a pallet rider at the warehouse by Saveba. As a result of the collision, Mr Krupowicz suffered a significant crush injury and a compound fracture to his right foot, that later required his right leg to be amputated below the knee.

Issues

The defendant admitted that it owed a duty to Mr Krupowicz pursuant to s 19(1) of the Act. The issues in this case are:

Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [11] of the Summons? (Element 2)

Is the defence of honest and reasonable mistake made out?

Summary of conclusion

For reasons that follow, I am satisfied beyond reasonable doubt that the defendant failed to take the reasonably practicable steps to ensure the health and safety of Mr Krupowicz. I am also not satisfied that the defence of honest and reasonable mistake is made out. It follows that I find the defendant guilty of the s 33 offence.

The Evidence

The evidence consisted of the tender of documents and oral evidence from the following witnesses:

Inspector Eugene Prokopenko, SafeWork NSW;

Inspector Logan Drury, SafeWork NSW;

Brendan Attard, employee of the defendant placed to work with Saveba at the warehouse;

Alfred Fifita, employee of the defendant placed to work with Saveba at the warehouse;

Zayne Krupowicz, employee of the defendant placed to work with Saveba at the warehouse;

Kyle Peacock, employee of the defendant placed to work with Saveba at the warehouse;

Chezelle Richards, Senior Account Manager employed by the defendant;

Teno King, Warehouse Manager employed by Saveba;

Peter Gillespie, Warehouse Manager employed by Saveba;

Steven Kaliti, Warehouse Supervisor employed by Saveba;

Chris O’Toole, Warehouse Supervisor employed by Saveba;

Andrea Mburuja, Senior Account Manager employed by the defendant; and

Stavroula Galanakis, National Operations Manager employed by the defendant.

Credit

Before turning to finding facts based on the evidence, it is necessary to make some findings about the credit of the witnesses called to give evidence.

Prosecution witnesses

Inspector Prokopenko attended the scene of the incident shortly after SafeWork was notified of the incident, which was a few days later. Inspector Prokopenko gathered information from employees of Saveba and took some photographs. No issue was taken with Inspector Prokopenko’s credit and I accept his evidence.
Inspector Drury was involved in the subsequent investigation of the incident after 22 April 2021 and issuing the s 155 Notices to the defendant. No issue was taken with Inspector Drury’s credit and I accept his evidence.
Mr Attard began working at the warehouse on 13 May 2021 as a labour hire worker placed by Momentum, before becoming a permanent employee of Saveba on 19 July 2021. Mr Attard presented as a witness who was trying to do his best to tell the truth and to recall the relevant events. I accept his evidence.
Mr Fifita presented as a very genuine witness who was doing his best to give truthful evidence and I accept his evidence.
Mr Krupowicz was a careful and thoughtful witness, even though at times during his evidence he came across as casual. It was evident that the incident, his injury and his consequent disability has deeply affected Mr Krupowicz. I am satisfied that Mr Krupowicz was trying his best to give truthful evidence and I accept his evidence.
Mr Peacock was not assisted by the unavailability of the documents that he signed when he was employed by Momentum. I am satisfied that Mr Peacock gave his best recollection of relevant events and that I should accept his evidence.
Ms Richards was a thoughtful and co-operative witness. I am satisfied that she was trying, to the best of her recollection, to give truthful evidence. Many of the events were hard for Ms Richards to remember in any detail and the documents she prepared at the relevant time were the most reliable source of information concerning her involvement. Ms Richards presented as a competent and capable account manager, who did her best to apply the defendant’s systems within the limits of her training. In cross-examination she was taken to a version of the employee contract in the tender bundle that was marked with highlighting. At the time that she answered questions on the contract, I formed the impression that she emphasised the importance of the highlighted terms because the format of the document drew her attention to those terms. I find that it is more likely that it was her usual practice to ask potential candidates if they had any questions on the terms of the contract, rather than asking specific questions or highlighting the importance of particular terms. Other than that, I accept her evidence.
Ms King was employed by Saveba as the Warehouse Manager from 1 April 2019 to 16 July 2021. Ms King had a limited recollection of the things that she discussed with Ms Richards on 7 and 13 May 2021 and generally. I have exercised some caution in relation to Ms King’s evidence because she left Saveba’s employment before a number of the relevant events took place. She was not replaced at the warehouse for a considerable period and she did not provide a handover to her replacement. It was apparent from the evidence, that some of the practices Ms King gave evidence about, such as assessing workers as competent to use pallet riders, were no longer being observed after, and perhaps before, she left. There was considerable pressure on the ability of the warehouse to cope with the amount of stock it was processing before Ms King left, and it is likely that her focus was distracted from safety issues. For reasons that I will come to I have rejected her evidence that there was a practice of only training workers that Saveba wanted to retain on how to use a pallet rider. Otherwise, I formed the view that Ms King was doing her best to tell the truth and that her evidence should be accepted.
Mr Gillespie joined Saveba on 22 November 2021 as the Warehouse Manager, replacing Ms King. When Mr Gillespie requested labour hire workers from Momentum he dealt with Mr Mburuja. Mr Gillespie presented as a competent manager with a wide range of experience in warehousing. I accept his evidence.
Mr Kaliti was employed by Saveba as a supervisor and a few days before the incident he was given a temporary assignment to supervise about 20 workers on the afternoon shift. He usually worked on the morning shift as the supervisor of the inbound team that consisted of three workers. Mr Kaliti had limited knowledge of the work to be completed on the afternoon shift at the time of the incident. Mr Kaliti presented as a careful witness and a competent supervisor. I accept his evidence.
Up until a few days before the incident Mr O’Toole was employed by Saveba as the afternoon shift supervisor. He was responsible for supervising about 15-20 workers across different teams and the number of workers fluctuated. The majority of the workers on afternoon shift were tasked to undertake quality control. Mr O’Toole was frustrated about the warehouse operating over its capacity in the six months before he left and thought that it was an accident waiting to happen because there was so much stock in the warehouse that there could be no effective traffic management. He complained to management, but nothing changed. Notwithstanding that Mr O’Toole left Saveba because he was not happy in his role, I formed the view that he was a forthright and honest witness. He expressed firm opinions that in my view were justified on the evidence and by reference to his considerable experience in warehousing. I accept his evidence.

Defence witnesses

Mr Mburuja joined the defendant on 6 December 2001 as a Senior Account Manager, replacing Ms Richards. At the time of the incident, he was responsible for looking after 60 labour hire workers across about eight host employers. Before the incident, Mr Mburuja had only placed one forklift driver to work for Saveba at the warehouse. Mr Mburuja gave evidence about his training and his role at a fairly high level and his evidence is not of much use in determining the factual issues in the case. Mr Mburuja had not received any formal WHS training but was aware that his work was reviewed by the WHS Team of Momentum. Mr Mburuja had accompanied labour hire workers to attend inductions at other host employer sites, but not at Saveba. Mr Mburuja’s evidence seemed to be reconstructed in a number of respects, because he did not have many meaningful interactions with Mr O’Toole or anyone else at Saveba before the incident. In fact, Mr Mburuja’s involvement with Saveba was necessarily limited because he commenced work on 6 December 2021 and was on leave from before Christmas in 2021 to 13 January 2022. His expected return to work on 4 January 2022 was delayed because he contracted COVID-19. He appeared to form a view about what was done at the warehouse from the entries in the Client Relationship Management (CRM) system and the Site Inspection Report (SIR) and made assumptions about what the labour hire workers were doing at the warehouse. I am satisfied that Mr Mburuja was trying to tell the truth but I do not think that his evidence is reliable or of much relevance in deciding the issues.
At the time of the incident, Ms Galanakis was employed by the defendant as the National Operations Manager. She was responsible for the training systems of Momentum. Her evidence related to these systems, which I have ultimately concluded were inadequate. No issue was taken with Ms Galanakis’ credit and I accept her evidence.

Facts

The following paragraphs represent my findings of fact, unless stated otherwise. I will not repeat matters I have already referred to and will use the terms I have already defined.

Background

The defendant conducted a business providing recruitment and labour hire services in New South Wales, Victoria, Queensland and Western Australia.
Saveba operated a business involving the retail sale of household furniture items under the business name “Coco Republic” in various locations in Australia and operated the warehouse at the site from about 1 April 2019.
Saveba had a few permanent employees at the site but also used labour hire workers sourced from a number of agencies.
The warehouse stored furniture and homewares to facilitate distribution to Saveba’s retail stores, its other warehouses and to customers. The items stored at the warehouse included large and heavy items of furniture, such as lounges and dining tables that could weigh as much as 350kg. Items were stored on full height racks in the warehouse that were accessed with the use of high-reach forklifts. Most items were stored and transported around the warehouse on pallets with the use of forklifts, pallet riders and pallet jacks.
From May 2021 until after the incident Saveba leased from Toyota four Toyota LPE 200 electric pallet riders. The pallet riders had tynes similar to a forklift approximately 3 metres in length that could lift two pallets at a time in a side-by-side configuration at the front. The controls of the pallet rider were at the back of the pallet rider and the operator was separated from the load by an enclosed box, housing the motor. The operator of a pallet rider could ride on a platform at the rear. Alternately, the platform could be folded up and the operator could walk behind the pallet rider. The platform was open and the legs of the operator were not protected in the event of a collision, as was demonstrated by the incident. Operators usually drove the pallet riders with the load trailing behind them. This involved the operator standing side-on to the controls and facing the direction of travel. Workers did not require a high-risk work licence (HRWL) to operate a pallet rider.
Some items arrived at the warehouse in shipping containers that were unpacked on the hardstand area. On occasions, shipping containers were also re-packed in that area for transport to other locations.
The warehouse was staffed by two shifts. The morning shift operated from 6.00am to 2.00pm and the afternoon shift operated from 2.00pm to 10.00pm. During the morning shift, the workers would focus on picking the stock required to fill orders and on the afternoon shift the workers would undertake quality control and get the stock ready for distribution the next morning.
There were about 15-25 workers who worked the afternoon shift, most of whom were labour hire workers.
Workers on the afternoon shift undertook a variety of work, but the majority of the work involved quality control. These workers were referred to on the warehouse floor as QC workers or the QC team.

Furniture assembly and quality control at the warehouse

Each item of furniture supplied from the warehouse was checked for damage and fully assembled before being sent out. Only about 25% of the items supplied by Saveba required some degree of assembly at the warehouse.
Items required to fill an order were picked from the racks at the warehouse or from an incoming delivery and taken to the Pre-QC Staging Area where they were stored on pallets in rows until they were assembled and/or checked.
QC workers worked in an area referred to as the QC Carpet. The QC Carpet was an open area of the warehouse with carpet on the floor to prevent the items being scratched or damaged when they were unpacked, assembled and re-packed in that area.
The quality control process involved unpacking items, inspecting them for damage, assembling the items with hand tools (if required), repackaging items for protection during transport and putting items in the appropriate staging area for delivery. If a worker identified that an item was damaged, the worker would take it to the workshop for assessment and, if possible, repair.
QC workers were supervised by Mr O’Toole from 13 May 2021 to early February 2022 when he left Saveba. In that role, Mr O’Toole was responsible for allocating tasks, providing training and instruction and supervising the workers.
Ms Richards, in her role as Senior Account Manager for Momentum, contacted Mr O’Toole directly to enquire how the labour hire workers were going from time to time, and to see if he required additional workers.
In January 2022, Mr Kaliti was the outbound team leader responsible for getting cargo on pallets ready to be transported interstate. His role involved supervising three workers on the morning shift. In about early February 2022, when Mr O’Toole left Saveba, Mr Kaliti was given the temporary assignment to supervise all of the workers on the afternoon shift, which was intended to last for two weeks. In this role, Mr Kaliti was responsible for supervising close to 20 workers, including the QC team, the inbound team and the picking team. The workers on the afternoon shift were a mixture of permanent Saveba employees and labour hire workers. Mr Kaliti was in charge of the work on the day of the incident.

The engagement of the defendant to provide workers for the warehouse

In or about May 2021 the defendant became aware that Saveba was looking for labour hire workers to work at the warehouse.
On 7 May 2021 Ms Richards attended the site with John Akam of the defendant and spoke to Ms King about the possibility of supplying labour hire workers to work in the warehouse.

Ms Richards gave evidence that she attended the warehouse and observed its operations from the staff area on the mezzanine level, at which time she took a couple of photographs from the mezzanine level. Mr Richards could not recall if she saw a pallet rider operating in the warehouse, but Ms King indicated that there would have been pallet riders operating in various areas of the warehouse throughout the day. Later that day Ms Richards made an entry in the defendant’s customer relationship management (CRM) system in the following terms:

John A and I met with Teno, she showed us around the warehouse. Discussed seasonal volume, new MELB warehouse opening up Sept this year and will be 9,000m². Pemulwuy is 11,000m². Discussed the challenges with the other agency casuals. Coco’s direct recruiting, we advised we are also experiencing the same. She requested for us to source 6 x casuals/labourers/pick pack for their PM shift. Day shift is 7.30am-3.30pm, A/N shift is 1.30pm-9.30pm. Will also need to book a WHS site inspection as Allan has not completed one within the last 6 months in QLD. Will book this in next week.

The agreement between Momentum and Saveba

Momentum had an existing contract to supply labour hire workers to Saveba’s warehouse in Brisbane, which was the subject of a written agreement dated 16 June 2014. The workers placed by Momentum to work at the warehouse were provided pursuant to that existing agreement.
The terms of the agreement were contained in a document entitled “Terms and Conditions of Business” (Terms). Momentum’s terms covered the placement of workers to be engaged of permanent employees of the client (recruitment) and the placement of temporary workers (labour hire).
Momentum charged Saveba an hourly rate for the placement of a temporary labour hire worker that covered the worker’s wages, superannuation, payroll tax, other administrative fees and Momentum’s fee. Momentum retained responsibility for paying the labour hire worker’s wages and entitlements directly to the employee.
Further, if a temporary labour hire worker became a permanent employee of Saveba in the first 12 months of their placement by Momentum, Saveba became liable to pay a placement fee.
The relevant terms of the agreement are as follows:

LIABILITY – You acknowledge that we are not performing the services set out in the assignment description: but are instead the supplier of a worker, at your request, to perform the work that you have described in the assignment description.
Because our workers work under your control, supervision and direction:
(i) Subject to sub-paragraph (ii) of this sub clause, we will not be liable to you for, and you will hold us harmless against any liability for, damage, loss or injury of whatsoever nature or kind, however caused whether directly or indirectly and whether by negligence or that one of our workers (including their servants or agents) whilst they are working under your control or supervision or direction.
(ii) Sub-paragraph (i) of this sub-clause does not reduce liability, directly incurred, to the extent to which it may have contributed to any such damage loss or injury.
WORK HEALTH & SAFETY – Momentum’s terms of employment with each temporary include but are not limited to the following obligations:
I agree to adhere to Work Health and Safety policies of Momentum Consulting Group Pty Ltd (“the company”) and the client and to adhere to all lawful and reasonable instructions of the client with regard to the use of safety equipment, the wearing of protective clothing and methods of performing work tasks.
I will not operate machinery without appropriate training on that particular machine. If I am moved to a different machine during the same assignment, I will not proceed to operate the machine if I have not received full training on that machine. If training is not provided, I will telephone the company and advise them of the situation. I will not operate machinery that appears to be unguarded. If, I am asked to operate an unguarded machine, I will contact the company immediately.
I will not operate a machine that fails to operate. If the machine fails to operate, I will not attempt to restart the machine until I have notified my immediate supervisor. In the event that my supervisor is unavailable, I will contact the company immediately.
It is the terms of Momentum’s contract with the client, that the client agrees to co-operate and allow Momentum’s temporary staff to comply with the obligations of these conditions. As Momentum do not have supervisory control of temporary staff assigned to the client, Momentum must rely on the client to ensure the temporary(s) are not exposed to risks to their health and safety whilst on the client’s premises. The client is obligated to these conditions under the Work Health and Safety Act 2011.
In a number of cases Momentum’s temporary employees may understand English as their second language, it is imperative that a client ensures that the temporary understands all safety instructions clearly.
These Terms and Conditions of Business are deemed to be the basis of Momentum’s agreement to supply temporary staff as requested and will become effective upon engagement of our services. By signing these Terms of Business you have accepted the above conditions. [1]
1. Underlining of assignment description added, bolded terms and the text box are in the original.

Saveba did not at any time provide a written “assignment description” to Momentum, as referred to in the Terms, outlining the specific tasks to be undertaken by “furniture assemblers” or QC workers.
Momentum contended that the words in the text box were incorporated into the terms of the agreement between Momentum and Saveba, by:

the express words of the last sentence; and

because the language used in the fourth and fifth bullet points in the text box indicated that they were not terms of the agreement between the labour hire workers and Momentum but rather applied between Momentum and Saveba.

I am satisfied that the Terms were signed on behalf of Saveba knowing that the document was intended to affect the legal relations between Momentum and Saveba and that it contained contractual terms, such that Saveba intended to be bound by those terms: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165. However, the relevant question is whether or not the terms relied by Momentum imposed any relevant obligation on Saveba.
The task of ascertaining the legal meaning of provisions in a commercial contract involves identifying the imputed intention of the parties by reference to the contractual text construed in light of its context and purpose: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[51].
A court will take an objective approach to interpreting the contract. In a commercial agreement, the question is what a reasonable businessperson would have understood the terms to mean, taking into account the language used, the surrounding circumstances known to the parties, and the commercial purpose of the objects to be secured. The last requirement is facilitated by understanding the genesis of the transaction, the background, the context and the market the parties are operating in. Unless the contrary is indicated, the court is entitled to approach interpretation on the basis that the parties intended to produce a commercial result. A commercial contract should be construed to avoid it making a commercial nonsense or working a commercial inconvenience Woodside Energy at [35].
Evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. However, such evidence is not admissible to contradict the language of the contract when it has a plain meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 (Mason J, Stephen and Wilson JJ agreeing).
The recitation of the obligations placed on the labour hire workers in their agreements with Momentum set out in the first three bullet points, did not impose any obligation on Saveba. At best they provide contextual information to the effect that Momentum represented that it had secured promises from the labour hire employees to act in the ways set out.
It should also be noted that the alleged terms set out in the first three bullet points do not appear in the words set out in the Casual Worker On-hire Employment Contract (Employment Contract) or Momentum’s Important Policies signed by the relevant workers in this case. In other words, the express promises secured by Momentum from the workers are not those set out in the Terms, but in the relevant documents the workers agreed to similar obligations. I note that the Employment Contract and Important Policy documents were, according to the footer printed on them, the 2020 version of those documents. I infer that the terms of the Employment Contract and the Important Policy documents were altered after the Terms were signed by Saveba in 2014.
The fourth bullet point is in two parts. The first part imposes an obligation on Saveba to co-operate with Momentum by allowing the labour hire workers to comply with the obligations imposed on them by the first three bullet points. The second part states that Saveba has obligations under the Act and that Momentum relies on Saveba to manage risks to the health and safety of the labour hire workers. Read together, it is arguable that the clause sets out the statutory obligations of Saveba to provide safety instructions, training on the use of machinery and the right to refuse to operate faulty machinery and that the fourth bullet point incorporates those matters into the Terms as contractual obligations imposed on Saveba. Having said that, the clause is broad and to a large extent uncertain. It must also be noted that the effect of such a clause cannot be to allow Momentum to contract out of its statutory obligations: ss 16(3) and 272 of the Act. For the purposes of deciding the case, I will assume the defendant’s case at its highest, that the effect of the clause in the fourth bullet point relevantly imposes contractual obligations on Saveba to provide safety instructions on work tasks and to provide adequate training on the use of machinery.
The fifth bullet point imposes an obligation on Saveba to ensure that any safety instructions given to a labour hire worker are given in a language that the worker can understand. This clause is not relevant to the determination of the case.

The WHS site inspection on 13 May 2021

On 13 May 2021 Ms Richards attended the warehouse to conduct a work health and safety (WHS) site inspection. When she attended Ms Richards completed the defendant’s form entitled “WH&S – Site Inspection Report” (the SIR) that had been prepared for clients of Momentum operating transport and logistics businesses. Ms Richards gave evidence that the SIR was completed by her as she was escorted around the warehouse by Ms King. Prior to conducting the WHS site inspection at the warehouse, Ms Richards gave evidence that she had not received any WHS training from the defendant on assessing risks posed in different workplaces and it was only the second time she had been required to complete a SIR. Ms Richards had some experience in working at a pharmaceutical warehouse for Momentum.
At the relevant time, the defendant had developed a Workplace Health and Safety Site Inspection Training Manual published in July 2016 (the Manual). Ms Richards was not taken to the Manual in the course of her evidence or asked if she understood the document or applied it. The purpose of the Manual was stated to be for Momentum staff to have the knowledge and skills to effectively do a site inspection at a host employer for compliance with WHS legislation. The Manual provided information about WHS terminology. It specified a list of documents that could be expected to be in a host employer’s safety system, including induction procedures, a risk register, job descriptions, Safe Work Method Statements (SWMS), Standard Operating Procedures (SOP) and safety rules, and provided a brief description of each.
The Manual stated that Momentum employees carrying out WHS site inspections were expected to:

have watched and understood videos entitled “Work Safety Essentials” and “Manual Handling for Industry” available at Momentum’s offices;

have a good basic understanding of WHS legislation and its requirements;

be familiar with Momentum’s WHS policies and procedures; and

have a good knowledge of risk management, which was described in the Manual as “critical” to carrying out a WHS site inspection correctly.

The Manual stated that until a Consultant was competent at conducting WHS site inspections that they would be accompanied by an experienced site inspector. The Manual further stated that random audits would be conducted to ensure that WHS site inspections were carried out correctly and that host employers continued to be compliant with WHS legislation.
The Manual set out the processes to be followed to:

train the consultants on site inspection;

conduct an initial inspection;

conduct a random or scheduled site inspection; and

record the results.

Ms Richards gave evidence that she was taken through the warehouse by Ms King, walking from the staff area on the mezzanine level along the pedestrian walkway in an anticlockwise direction, ending up at the hardstand and stopping at points of significance along the way. Ms Richards made entries on the SIR during the course of the inspection and at the conclusion of the inspection Ms King signed the SIR as a record of the inspection.
Ms Richards noted on the SIR that Momentum was being asked to provide labour hire workers for a “furniture assembly” role. Ms Richards noted that a written job description for the role was not available and that Saveba only had written position descriptions for the positions of team leader and above. Ms Richards could not recall the content of any conversations during the WHS site inspection about the nature of the duties to be undertaken by a “furniture assembler” at the warehouse.
The SIR prompted the Momentum employee filling it in to sight a client’s WHS documents and to take note of the information in them, if necessary. If a relevant document could not be produced or was not available, the SIR prompted the Momentum employee to discuss that issue with their manager. This was consistent with the content of the Manual.
Ms Richards gave evidence that when she sighted relevant documents that she would look at the headings in each document to ascertain the topics covered by them but did not read them word for word. Ms Richards lacked both training and experience in the analysis of these documents such as the Traffic Management Plan (TMP) or the Traffic Management Procedure and she understood her role was to check that safety documents existed and that they appeared to be bona fide.
The SIR noted that Ms Richards sighted Saveba’s Safe Work Method Statements (SWMS), Safe Operating Procedures (SOP) and Safety Rules, during the course of her inspection, but it did not identify which ones.
Ms Richards noted the major WHS risks at the warehouse to be manual handling, forklift traffic, power tools and MHE (material handling equipment).
Ms Richards gave evidence that at the time of filling in the SIR that she understood that Saveba used forklifts and pallet jacks as material handling equipment. Ms Richards could not recall any discussion during the WHS site inspection about the use of pallet riders. Ms Richards gave evidence that she did not know what a pallet rider was and did not recall seeing pallet riders in use when she had been at the warehouse.
Ms Richards gave evidence that she did not recall asking how pallets were moved around the warehouse on pallets during the WHS site inspection. She recalled seeing a large marble dining table during the WHS site inspection, but she did not turn her mind as to how large or heavy items were transported around the warehouse. Ms Richards also gave evidence that she did not consider any tasks that might arise incidentally while workers perform their duties.
Ms Richards noted that the main topics covered at Saveba’s induction sessions to be:

manual handling, the use of a retractable blade, removal of shrink wrapping and the use of a pallet jack.

Ms Richards could not recall any discussion during the WHS site inspection about the type of work that was undertaken in the QC Carpet area.
Ms Richards gave incorrect evidence that the furniture assembly workers placed by Momentum at the warehouse would be working in the workshop area of the warehouse, which she also misidentified from a photograph that was shown to her. It is likely that Ms Richards assumed that furniture assembly would be undertaken in the workshop and that she misidentified the location of the workshop because the photograph depicted a person working at what appeared to be a work bench. Whatever the reason for these two errors in her evidence, I am satisfied that they indicated that she did not have a good understanding from the WHS site inspection of how or where the work to be performed by the Momentum workers would be undertaken in the warehouse.
Ms Richards did not have a good recollection of the matters discussed with Ms King during the WHS site inspection. She gave evidence by reference to her usual practice, but it must be noted that this was only the second time that Ms Richards was required by Momentum to complete a SIR. Ms Richards appropriately conceded that the best evidence of what was discussed during the WHS site inspection, and at other times, was contained in the SIR and the notes entered in the CRM system.
Similarly, Ms King did not have a good recollection of the matters discussed during the WHS site inspection. She signed the SIR to confirm that Ms Richards had conducted the inspection. Ms King believed that she would have discussed pallet riders with Ms Richards if she was asked what MHE was used in the warehouse and would also have probably spoken about the platforms on pallet riders and their associated risks with pedestrians, when they were discussing the machinery onsite but I am not satisfied on the evidence that these topics were discussed during the WHS site inspection.
Ms King gave evidence that she had at some point discussed the use of pallet riders at the warehouse with Momentum, because it was Saveba’s practice or preference to only train labour hire workers to operate machinery, such as a pallet rider, if Saveba considered the worker to be a good worker and suitable for permanent employment with Saveba. The rationale behind this was that Saveba did not want to spend time training labour hire workers to use machinery, who Saveba did not want to retain, or could be placed with other host employers by Momentum. Ms King’s evidence was that when discussing particular labour hire workers with Momentum, she would for example mention that the worker was being trained to use a pallet rider, to indicate that Saveba was interested in retaining the worker as a direct employee of Saveba. It was the usual practice of Saveba to wait until the worker had been placed by Momentum at the warehouse for 12 months, so that Saveba could appoint the worker as a permanent employee without incurring the placement fee.
Ms King could not recall any specific conversations with Momentum representatives on this topic, but she believed that she had sent emails to this effect. No such emails were in evidence. Whilst I accept that Ms King’s evidence reflected her preference as a senior manager at Saveba relating to the training of labour hire workers, I am not satisfied that this preference or practice was in place or communicated to Momentum for four reasons. First, I would have expected this type of communication with Momentum to have been documented, at least in an email and there was no evidence of this. Second, the evidence of the workers at the warehouse, including the supervisors employed by Saveba, did not support the existence of Ms King’s preference or a practice by Saveba. For the reasons I will come to, the true position was that any of the labour hire workers could use a pallet rider to perform their duties, if they asked to do so and after they were provided with inadequate and uncontrolled training on how to use a pallet rider. Third, Ms King gave evidence that there was no prohibition in place at the warehouse to prevent a labour hire worker using a pallet rider and in my opinion this cuts against Ms King’s assertion that only certain people were to be trained. Fourth, many of the relevant events occurred after Ms King left Saveba and the views expressed in her evidence were probably not current at the time of the incident.

Finally, the WHS site inspection as described by Ms Richards would have taken her past the MHE Charge Bay, where the pallet riders were charged, if they were not in use. Ms Richards gave evidence that she could not recall seeing a pallet rider at the MHE Charge Bay or in use on 7 May 2021 or 13 May 2021. Her evidence was that as at 13 May 2021, she did not know what a pallet rider was. She did not become aware of what a pallet rider was or that they were being used at the warehouse until after she was advised of the incident involving Mr Krupowicz.

The employment and induction training of the Momentum workers

Momentum employed and placed 28 labour hire workers with Saveba to work at the warehouse in the period between May 2021 and the incident on 9 February 2022.

Brendan Attard

Mr Attard started work at the warehouse on 13 May 2021 as a labour hire worker placed by Momentum. Mr Attard’s first day of work at the warehouse occurred on the day that Ms Richards completed her WHS site inspection. She met Mr Attard at the warehouse to introduce him.
On 19 July 2021 he became a direct employee of Saveba.
Mr Attard contacted Momentum after seeing an advertisement on an employment app. He attended Momentum’s office at Parramatta for an interview with Ms Richards. He was shown an induction video entitled “Understanding Safety at Work” and answered a number of questions on it to demonstrate that he understood the content of it. He also signed a number of documents at the interview, including an Employment Contract and Momentum’s Policies referred to at [88] below.
The Understanding Safety at Work video was a professionally produced presentation that depicted a number of accidents at workplaces. It covered topics including risk assessment, housekeeping, slips, trips and falls, hazardous substances, electrical hazards and work equipment safety. In the last chapter, the equipment referred to included a reference mobile transport equipment including forklifts. It warned of a risk of death from a collision between a pedestrian and a forklift and advised workers to stay in marked pedestrian areas to avoid the risk of a collision. On the issue of manual handling, the video advised not to take unnecessary risks and to always use suitable mechanical handling aids and depicted the use of a trolley and a pallet jack.
During the course of the interview, Mr Attard recalled being told that he was better suited for a placement at the warehouse, rather than on a fast-paced production line at an air-conditioning factory. He was told Saveba was a furniture company, but the role was not really described to him in much detail. He did not recall any discussion on the risks present at the warehouse or any training that he could expect to receive. He was not given a written position description. He did not recall being given any instruction on what to do if his duties at the warehouse changed or if he was asked to operate machinery. Mr Attard did not accept the proposition put to him in cross-examination that when he went to Saveba that he performed the work that he was told he would be doing in the interview. He was not told that he would be required to use a pallet rider.
Mr Attard gave evidence that he was given an induction on the mezzanine level of the warehouse by Ms King and that he did not recall Ms Richards being present, but she may have been. After the induction, Ms King took him onto the warehouse floor and introduced him to Mr O’Toole.

Kyle Peacock

Mr Peacock was initially a labour hire worker placed at the warehouse by another agency, ProQuest, in about August 2021. He stopped working at the warehouse for a short period and when he returned to work at the warehouse, he did so as a labour hire worker placed by Momentum. He was told by Mr O’Toole that if he wanted his job back to contact Ms Richards. He could not recall precisely when the change in his employment occurred, but from text messages between himself and Mr O’Toole he believed that he ceased work for ProQuest on 19 October 2021 and commenced work for Momentum on 4 November 2021. He left the employ of Momentum on 6 January 2022.
Mr Peacock’s Employment Contract was not in evidence. His evidence suggested that his contact with Ms Richards was cursory because he had already worked at the warehouse for ProQuest and he was coming to her on referral from her client. In cross-examination he accepted that he did have a Zoom interview with Ms Richards that might have gone for 30 minutes to an hour. In reality, it was probably much shorter.
Mr Peacock could not recall getting a written position description from Ms Richards. Mr Peacock did not recall having any discussion with Ms Richards about the work he would be doing, the use of MHE or machinery, what to do if his duties changed or what risks existed at the warehouse. Mr Peacock was not provided with an induction by Saveba when he returned to work at the warehouse on placement by Momentum. Mr Peacock had never seen the Safe Work Procedure – Working with Mobile Equipment document.

Zayne Krupowicz

In about September 2021, Mr Krupowicz was referred to Ms Richards at Momentum as a potential source of work by Mr Peacock. At that time, Mr Krupowicz was working early morning shifts for McDonalds and had no experience in warehouse work or logistics.
At the time that Mr Krupowicz was employed by Momentum, it was not conducting in-person interviews as a result of the restrictions put in place to deal with the COVID-19 pandemic.
After Mr Krupowicz made initial contact with Ms Richards, Momentum sent him a number of documents by email, to complete and sign electronically using an application called FlareSign, including:

Application Form;

Casual Worker On-Hire Employment Contract which included the following:

a clause relating to “Change in duties and responsibilities” in the following terms:

Momentum reserves the right to change the job specifications at any time under the terms of our agreement with the Host Employer. If, however you are in an assignment for Momentum and the Host Employer changes your duties from the original job brief given by Momentum you must contact your Consultant at Momentum immediately.

a pledge that workers would “complete the specified tasks allocated to this assignment and will not perform any other task during the specified business hours of the Host Employer”

clauses in relation to the use of equipment and machinery at the warehouse in the following terms:

iv) You will not carry out work on any equipment or site that you are unfamiliar with or unqualified to use, especially if you have not received adequate training and information and/or an induction by the Host Employer of a member of Momentum. You will advise Momentum if your duties or the site location changes during an assignment.
v) If you are operating machinery during your employment and are moved to a different machine during the same assignment, you will not proceed to operate the machine if you haven’t received full training on that machine. If training not provided, you will telephone Momentum and advise them of the situation …

Alcohol Drug and Substance Policy

Candidate Online Pre-Placement Medical Questionnaire

Workplace Bullying and Harassment Policy

Workplace Health and Safety Policy

Code of Conduct Policy

Fair Work Information Statement

Privacy Policy and Statement

The FlareSign records indicated that Mr Krupowicz electronically signed the relevant documents within a very short time of first accessing them. For example:

the Employment Contract, a four page document set in small print in 2 columns, was completed and signed by Mr Krupowicz within 3 minutes of him first accessing the document;

the Important Policies consisting of:

a three page Alcohol, Drug and Substance Policy;

a three page Workplace Bullying and Harassment Policy;

a four page Workplace Health and Safety Policy;

a three page Code of Conduct Policy;

a four page Privacy Policy and Statement; and

a two page Fair Work Information Statement published by the Fair Work Ombudsman.

were all completed and signed by Mr Krupowicz within 3 minutes and 18 seconds of him accessing the first of those documents.

The FlareSign records corroborate Mr Krupowicz’s evidence that he signed the Employment Contract and the Important Policies without reading them. Further, I am satisfied that the FlareSign records were available to Momentum at the time, and that Momentum should have known that the way in which it sought to provide the safety information to Mr Krupowicz in those documents was inadequate and ineffective.
On 15 September 2021 Mr Krupowicz participated in a video interview with Ms Richards on WhatsApp due to the COVID-19 restrictions in place at that time.
Mr Krupowicz could not recall there being any discussion in the interview about the Employment Contract or any of its clauses. He did not receive any document outlining his duties as a labour hire worker at the warehouse and he was not told what the exact duties were. He had a general understanding that he was to check furniture to make sure it was not damaged, to wrap it up and put it to the side. He was not told what to do if he thought a task was unsafe or if he was asked to operate equipment that he was not qualified to use. There was no discussion about receiving training before being asked to operate equipment. He was not told anything about the use of MHE or pallet riders, or how items of furniture were moved around in the warehouse. He was not told about any risks at the warehouse or what safety training he could expect to receive. Mr Krupowicz did not understand that he was required to tell Momentum if his duties changed. In cross-examination, Mr Krupowicz agreed that Ms Richards told him in the WhatsApp interview that the role involved assembling furniture using hand tools, manual handling up to 20kgs, the shift times and that he was required to wear a high visibility vest and steel capped boots. Counsel for Momentum suggested that Ms Richards told Mr Krupowicz about a number of tasks that he would be required to undertake in his role at the warehouse. To the extent that Mr Krupowicz agreed with those propositions:

I am of the view that he was confused between the tasks that he actually undertook at the warehouse after he started work there and what he was being asked in cross-examination, i.e. was he told by Ms Richards in the WhatsApp interview about the work; and

his general recall of what was discussed in the WhatsApp interview was poor and I do not accept that he had an independent recollection when he gave evidence of being told that he would be undertaking those tasks.

Ms Richards did not have any recollection of conducting this interview. At times, she was required to conduct as many as 10 interviews a day. Mr Krupowicz was not provided with any form of induction by Momentum relating to the work at the warehouse. The Safety at Work video was not shown to him or made available to him at that time.
On 16 September 2021 Ms Richards sent an email to Mr Krupowicz advising him that he had been successful in obtaining work as a labour hire worker to be placed with Coco Republic at the warehouse, that he was to start on the following Monday 20 September 2021 and to report to Chris O’Toole on that day. No safety information was included in that email.
Mr Krupowicz denied that he was provided with induction training by Saveba at the warehouse. Saveba’s usual practice was to have a new labour hire worker undertake an induction with their supervisor and to sign a Visitor/Contractor Induction Form as evidence that the induction took place and to complete a Visitor Site Safety Assessment to demonstrate that the new worker understood the content of the induction. Neither of the relevant forms signed by Mr Krupowicz could be located by Saveba.

Alfred Fifita

Mr Fifita was referred to Momentum by a relative who had been placed to work at the warehouse. He filled out some forms online before having a conversation with Ms Richards. Mr Fifita electronically signed the same forms completed by Mr Krupowicz, also using FlareSign. Mr Fifita accepted that by reference to the time stamps on the documents applied by FlareSign that he did not read them carefully, or at all, before signing them. He did not recall anyone from Momentum explaining any of the documents to him before he signed them.
Mr Fifita had a Zoom call with Ms Richards on 13 October 2021. He could not recall the conversation that occurred in the interview. He did not recall there being any discussion about what he was required to do if he was directed by Saveba to undertake different work. Mr Fifita understood that the job at the warehouse was “warehouse labouring work” involving “Just lifting…lifting boxes”. He was not told anything about training, pallet riders or TMPs or traffic management procedures. He did not recall receiving a written position description from either Momentum or Saveba.
In cross-examination Mr Fifita could not recall if Ms Richards used the term “quality checker” but stated that it what he and the other workers were referred to as at the warehouse. He did not recall if Ms Richards told him anything about the nature of the work he would be doing at the warehouse. Mr Fifita did not receive any form of induction from Momentum relating to the work at the warehouse.
Mr Fifita received an email from Momentum in similar terms to the email sent to Mr Krupowicz advising him that he had been successful in securing employment and when to report to the warehouse.
On his first day at the warehouse, Mr Fifita was given an induction by Mr O’Toole. Mr Fifita agreed that he was not told anything about using a pallet rider. He was told to walk on marked pedestrian lanes in the warehouse, and that he could not walk in the “Warehouse A” area because that was only for forklifts.

The work of the labour hire employees at the warehouse involving pallet riders and the training provided by Saveba on how to operate them

Mr Attard gave evidence that his work at the warehouse involved quality control, which required him to assemble and disassemble furniture, packing furniture and staging it in different areas depending on where it was to be delivered. At first, he did not use a pallet rider. Of the other eight to 10 QC workers, some of them used pallet riders to move empty pallets, rubbish or to move a heavy item closer to the QC Carpet. Mr Attard’s evidence was that he was not told that he could not use a pallet rider. After he got an understanding of how the warehouse operated Mr Attard started using a pallet rider. He was shown by a co-worker, not a supervisor, how to operate a pallet rider, but he could not remember who showed him. He was not given any instructions relating to traffic management rules in the warehouse. Mr Attard gave evidence that pallet riders were used as a means of transport by the workers on the QC Carpet, including to make trips to the bathroom.
Mr Attard gave evidence that pallet riders were used in some areas of the warehouse where the access was too tight to use a forklift. Mr Attard was not told that there were any “no-go” areas for pallet riders in the warehouse.
Mr Peacock commenced work at the warehouse in about August 2021, as a worker on the QC Carpet. About a month or two after he started work, he began to use a pallet rider to “move stuff around”. Mr Peacock was shown how to operate a pallet rider by his brother-in-law who was also a QC worker and was not a supervisor. He was not given any instructions relating to traffic management rules in the warehouse. Pallet riders were used to bring items to the QC Carpet by Mr Peacock and other QC workers when forklift drivers were too busy to do so. Mr Peacock also used a pallet rider to move pallets from outside the warehouse on the hardstand area. No one at Saveba told Mr Peacock that he could not use a pallet rider or that there were “no-go” areas for pallet riders. Mr Peacock gave evidence that there were some heavy items of furniture that could not be moved other than with a forklift or pallet rider. After he began to use a pallet rider, Mr O’Toole asked him to use one a couple of times to undertake tasks. Mr Peacock did not understand that he was obliged to tell ProQuest or Momentum that he was using a pallet rider at the warehouse.
Mr Krupowicz gave evidence that when he commenced work that he observed that pallet riders were used frequently to move items around the warehouse. He saw them used in all parts of the warehouse and was not instructed that there were “no-go” areas for pallet riders. QC Workers used the pallet riders multiple times a day for a wide variety of reasons, including taking damaged items to the workshop, the movement of large and/or heavy items, retrieving large rolls of bubble-wrap from the store, transporting items to the QC Carpet, and even going to the bathroom. Mr Krupowicz did not use a pallet jack during his time at the warehouse because the two that were available were constantly out of service.
Mr Krupowicz did not use a pallet rider for the first two to three weeks he was employed at the warehouse. He was initially reluctant to do so because he did not have a driver’s licence and felt “a bit nervous”. No-one from Saveba or Momentum told him that he could not use a pallet rider or that he needed to receive specific training before he did so. Mr Krupowicz observed a number of the workers on the QC Carpet used pallet riders in the course of their work.
Mr Krupowicz asked Mr Peacock to show him how to operate a pallet rider and after that he started using them. The instructions given by Mr Peacock related to the basic operation of the pallet rider and were very brief. No supervisor from Saveba was involved in this training. Mr Krupowicz was not given any instruction on the Traffic Management Plan (TMP) or the Traffic Management Procedure at the warehouse or provided with any basic traffic rules, such as to keep left when operating a pallet rider in the warehouse. After he felt comfortable in using a pallet rider, Mr O’Toole began to ask Mr Krupowicz to perform tasks using a pallet rider.
Mr Fifita gave evidence that when he commenced work at the warehouse he undertook quality control work on the QC Carpet. Initially he did not use a pallet rider but began to do so after a week or two at the warehouse after being encouraged to do so by other workers. To Mr Fifita’s observation only about four or five out of 10 of the afternoon shift workers used a pallet rider. Mr Fifita worked out how to use a pallet rider for himself and was not given any instructions by a supervisor. He was not assessed as competent to use a pallet rider by a supervisor. After he started using a pallet rider, he used one every day, several times a day to move pallets around the warehouse. In cross-examination, Mr Fifita said that he started to use a pallet rider because there were times when he was “standing around waiting for pallets to be moved when the pallet rider was there”. After a few weeks, Mr Fifita was asked by a forklift driver to help him in the hardstand area and thereafter he regularly worked in that area using a pallet rider. He did not believe he was under an obligation to tell Momentum about this change in his duties.
Ms King gave evidence that pallet riders were used to move items from the warehouse to the pre-QC staging area. During her employment with Saveba there was an operator dedicated to this task and if the operator was unavailable, workers who knew how to operate pallet riders assisted including the QC workers.
Mr O’Toole’s evidence was that the QC workers were required to use pallet riders regularly to move items around the warehouse and that they were required to do so. Pallets were arranged in rows in the QC staging area and one task of the QC workers was to move the pallets forward in the rows using a pallet rider as items on the pallets at the front of the row were removed to be assembled, checked and put into the required staging area for delivery. Pallet riders were also used to remove pallets from the rows in the QC staging area, if the items on them were required immediately. Usually, pallets were put in the QC staging areas by forklifts, but there were occasions when QC workers were required to retrieve items on pallets from different areas of the warehouse and bring them to the QC staging area. Once in the QC staging area, items were taken to the carpet by hand or on dollies. Large or heavy items that needed to be taken to the workshop were usually put on a pallet and transported using a pallet rider. There was a considerable amount of heavy and large furniture items that had to be moved around using a pallet rider.

Mr O’Toole gave evidence that the warehouse was constantly operating over its capacity. As a result, loaded pallets that were received during the morning shift were put in places that blocked the aisles and doors of the warehouse and were left outside on the hardstand area at the end of the morning shift. These pallets had to be moved by using pallet riders to gain access to different areas of the warehouse and to store all stock inside the warehouse before it closed for the night for security reasons. The blocking of aisles and exits with loaded pallets of excess stock required a lot of ad hoc movements to be conducted each day. All workers on the afternoon shift, including the QC workers, were required to undertake this work when it needed to be done, which was every day in the six months before the incident.
Mr O’Toole gave evidence that the QC workers were shown by somebody how to operate a pallet rider, that they were not required to be assessed as competent by him or anyone else at Saveba and that there was no training manual relating to pallet riders. QC workers were shown how to operate a pallet rider when it was required and there was no system in place to decide who would be trained. Mr O’Toole did not train any of the workers to use a pallet rider and he did not consider himself adequately trained to do so.
Mr O’Toole gave evidence that it was good warehouse practice to train workers to manually handle items as little as possible and to use the available MHE to prevent injuries.
Mr O’Toole gave a daily toolbox talk which included reading out a safety topic, of which there were about 10 different topics. The safety topic for the morning shift was also used for the afternoon shift. Mr O’Toole was familiar with the TMP but had never seen a copy of the Traffic Management Procedure.
Mr O’Toole from his experience in warehousing and at Saveba, considered the QC workers to be “warehouse workers” and that he could and would direct them to do whatever task needed to be done, except a task that they were not qualified for such as driving a forklift without a licence. Mr O’Toole’s evidence was that the task of a QC worker included housekeeping and in a warehouse that involved moving pallets when required to do so and with a pallet rider if that was necessary.
About a month or two before the incident on 9 February 2022, the afternoon shift picked up the responsibility for loading shipping containers in the hardstand area with items to be shipped the next morning. This was work that the “outbound crew” on the morning shift were unable to complete within their shift. The shipping containers were loaded with items on pallets with the use of pallet riders by two or three of the workers from the QC Carpet including Mr Peacock, Mr Attard, Mr Krupowicz and Mr Fifita.
Mr Kaliti gave evidence that as a supervisor of the afternoon shift that he would ask workers to perform different roles depending on the work that needed to be done. For example, if there were a lot of trucks coming in, he would ask QC workers to assist the inbound team to unload the trucks. About once a week, he asked QC workers to assist with loading containers in the hardstand areas when he needed additional labour.
Mr Kaliti’s evidence was that pallet riders were used regularly to move pallets around the warehouse and to bring loaded pallets out of racks to the QC staging area after they had been placed on the ground by a high-reach forklift. From the QC staging area, items were usually moved by hand, or on trolleys or dollies. After items were assembled and/or checked they would be moved to the relevant delivery staging area by hand, or on trolleys or dollies. Pallet riders could not be used close to the QC Carpet because they would get stuck or damage the carpet. Items were sometimes moved to the interstate or New Zealand staging areas and to the workshop using pallet riders
To Mr Kaliti’s observation, about two or three of the QC workers out of 10 or 12 in total, used pallet riders on the afternoon shift. Mr Kaliti’s understanding was that workers should be assessed as competent by a supervisor to use a pallet rider, before being allowed to do so, and he undertook that process with workers he supervised on the morning shift. When he came to supervise the afternoon shift, he assumed that the workers using pallet riders had been assessed as competent to do so by their supervisor, Mr O’Toole.
After the incident, Mr Attard and Mr Fifita were required to undertake training on the use of a pallet rider and they were then certified as competent to use a pallet rider by a safety employee of Saveba. Mr Kaliti’s evidence was that the process is now carried out by a WHS trainer who administers a written assessment, certifies the worker as competent, the process is documented and the documents are retained by Saveba.
Mr Gillespie gave evidence that there were only two types of labour hire workers sought from Momentum: forklift drivers and storemen or QC workers. Mr Gillespie’s evidence was that storemen could be asked to perform a number of different roles at the warehouse which all involved the movement of stock items on pallets around the warehouse, workshop and QC staging area and generally that involved the use of a pallet rider. Mr Gillespie expected the storemen to perform whatever task was required of them in any area and he observed them to do so at the warehouse. This “cross-functionality” coincided with his experience in warehousing both before and after his employment with Saveba.
When Mr Gillespie first started at the warehouse he asked his boss, Mr Kennedy about the pallet riders, because he had never seen one before. He was told that the workers did not require a HRWL to operate a pallet rider. Mr Gillespie understood that there was some informal training provided to workers about how to use a pallet rider, but no formal assessment of competency. After the incident, changes to the system were introduced as to training and assessment of workers before they could operate a pallet rider. When Mr Gillespie started work the TMP was displayed on a noticeboard, but it was not provided to workers in their induction. After the incident, Saveba introduced the Traffic Management Procedure and a Standard Operating Procedure for a Pallet Rider (SOP). After the incident, Mr Gillespie could not locate any induction documents relating to Mr Krupowicz.

Contact between the labour hire workers and Momentum

Momentum’s usual practice was to make periodic telephone calls to the labour hire workers. On occasions the telephone calls were made by account managers such as Ms Richards and Mr Mburuja and on other occasions they were made by Momentum staff who supported the account managers who were referred to as “Talent Coordinators”. Ms Richards gave evidence that these staff had a limited understanding of the nature of the work being completed at each of the client sites and the workers’ roles. The check-in calls involved asking the workers whether everything was okay, if they were enjoying their work and whether they had any issues or concerns. Ms Richards did not recall whether she had asked questions about risks, training, or supervision at the warehouse. She did not record any specifics after the check-in calls. Mr Krupowicz gave evidence that he received calls every few weeks from Momentum. On those occasions, he was not asked any questions about the work he was performing or any safety related matters. To his recollection, the calls were usually brief and he was asked if he was enjoying the work and if would consider staying on long-term. On 21 September 2021 Ms Richards called Mr Krupowicz. The record she made in the CRM stated:

Spoke to Zayne to see how the end of his shift last night, he said it’s a whole lot better than Maccas but feeling tired as he is used to 4am starts there so the shift times are a little different to get used to. No body aches from the lifting as he keeps fit. Everyone made him feel welcome. I adv I check in weekly/fn but if there is anything that pops in between to always call.

On 1 November 2021 and 19 November 2022 telephone records show that two calls were placed from the mobile telephone used by Ms Richards and Mr Mburuja to Mr Krupowicz lasting 1 minute 44 seconds and 2 minutes 28 seconds, respectively. On 20 January 2022 Rachel Fotiou of Momentum called Mr Krupowicz. The record she made in the CRM stated:

Zayne – not bad, he likes it but at the moment but isn’t liking the management at the moment and doesn’t know how long he will be able to stay there. I told him to see it out as they are making a lot of people permanent and that might be a better change for him but he said he will give us a call if he wants to change to something else.

On 19 January 2022 Mr Mburuja recorded a note in the CRM that Mr Krupowicz had telephoned him because he was missing a day’s pay. The call extended for 2 minutes and 28 seconds and Mr Mburuja gave evidence that it was possibly limited to the issues in relation to pay. He had no recollection of other issues being discussed and his note was also confined to a consideration of the pay issue.
On 23 January 2022 Mr Mburuja exchanged a series of text messages with Mr Krupowicz about a change of shift, that are not relevant to the issues in the case.
Mr Attard’s evidence was that when he was working for Momentum at the warehouse that he was called a few times and asked if he was happy at the warehouse and how everything was going. In particular, he recalled a brief call he received from Momentum after a couple of days or a week after he commenced work. In total he received about four or five calls from Momentum asking if he was having any problems at the warehouse. Mr Attard did not recall ever being asked about anything specific to his duties at the warehouse, anything about the use of machinery, his training or safety.
On 3 November 2021 and 21 January 2022 phone records show that five calls were placed from the mobile telephone used by Ms Richards and Mr Mburuja to Mr Fifita lasting 51 seconds, 2 seconds, 3 seconds, 3 seconds and 3 minutes 54 seconds, respectively.
Mr Fifita’s evidence was that he received a telephone call from Momentum a few days after he started that was “pretty brief – maybe 5-10 minutes”. He spoke to employees from Momentum a further four or five times during his placement at the warehouse. In the course of those conversations, he did not recall being asked about his duties, training or supervision.
Mr Peacock contacted Momentum from time to time when he was sick and when another worker with COVID turned up for work. He spoke to Ms Richards on occasions. He could not recall her asking him about his duties, risks at the warehouse, supervision or training. He did not receive any visits from Momentum at the warehouse.
Mr Mburuja’s evidence was that he had a service delivery team working with him to contact the labour hire workers. He would usually telephone labour hire workers if there was a problem escalated to him, such as non-attendance at work or he would see them and talk to them on site.
There were no CRM records produced that would support that Momentum made enquiries of the labour hire workers about the nature of their work or safety related issues.

Contact between Momentum and Saveba in the period 13 May 2021 to 9 February 2022

Mr O’Toole gave evidence that he was in contact with Ms Richards, while Momentum was providing labour hire workers. He said they spoke about how the workers were going and if he needed more workers. He did not discuss with her what he needed the workers to do, because he believed that she had been given that information by management. If he needed a worker, he told Ms Richards that he needed a worker and he did not say what work they would be doing unless he needed a forklift driver, who had to be licensed. He was not asked by Ms Richards to provide a written position description, to detail any training or supervision that the workers received or if they would be using any machinery or MHE. He was not asked about any risks in the workplace or if there was a traffic management procedure in place.
Ms Richards had no recollection of her discussions with Mr O’Toole in relation to the provision of workers to Saveba around September or October 2021.
On 20 September 2021 Ms Richards called Mr O’Toole at about the 4-hour mark of Mr Krupowicz’s first shift. The record she made in the CRM relevantly stated:

Spoken to Chris to see how Lopeti and Zayne were setting in. He sounded rushed so I didn’t keep him on the phone long.

On 1 November 2021 Ms Richards had a conversation with Mr Kennedy about a plan to visit the site, which he was open to. The record she made in the CRM stated:

Stewart Kennedy called and introduced himself to me as Coco’s new Regional Manager of NSW, QLD and ACT. He has been with Coco for a month now, working heavily at Pemulwuy DC, he is going through the process now of appointing a new DC Manager as Bernie is finishing up next week. He adv that he is going through the company and all of its current policies and workings of the DC in particular, running shift toolbox talks, raising the expectations. He adv there is now 5 agencies in the Pemulwuy DC, all of whom are facing the same challenges with casuals. He said there is neg culture of people who aren’t turning up for their rostered shifts on time, running late then filling out false times on their timesheets which are then getting approved and sent. He is cracking down on this and has made it very clear he won’t stand for this kind of behaviour. He is very much open to visits, I adv that I will pop out later this week to introduce myself which he welcomed.

On 9 November 2021 Ms Richards resigned and did not complete that site visit.
After Mr Mburuja replaced Ms Richards, he attended the warehouse on 21 December 2021 and met with Stewart Kennedy and Mr O'Toole. Mr O'Toole could not recall the content of that meeting. Mr Mburuja gave evidence that he met Mr Kennedy and Mr O'Toole in the mezzanine office at the warehouse and discussed "what day-to-day looks like, any service issues, any problems with the guys, anything major they'd want us to kind of tackle as soon as possible". Mr Mburuja stated there were no issues raised by Mr Kennedy or Mr O'Toole at that time. Mr Mburuja's evidence was that he could not visit the labour hire workers on the floor of the warehouse because they were behind and trying to catch up. Mr Mburuja had no recollection of asking Mr Kennedy or Mr O’Toole whether the labour hire workers used any machinery as part of their role. Mr Mburuja gave evidence that he wanted to conduct a further WHS inspection at the warehouse, but it was not clear if he had wanted to do that on 21 December 2021. His email calendar invite arranging the meeting did not refer to that as a purpose of the visit and only allowed 15 minutes for the meeting. Mr Mburuja recorded in the CRM system that Mr O'Toole told him that he had sufficient assemblers but was looking for one or two high-reach forklift drivers for the afternoon shift and that Saveba would be working through and only closing for public holidays over Christmas.
Mr Gillespie had contact with Mr Mburuja after he commenced work at the warehouse. He could not recall any conversation with Mr Mburuja about what work the labour hire workers were doing at the warehouse or their training or supervision. Mr Gillespie recalled meeting with Mr Mburuja at the warehouse and walking around with him for about 10 minutes on one occasion. Mr Gillespie observed Mr Mburuja speak to one or two of the Momentum labour hire workers on that occasion. Mr Gillespie gave evidence that it is possible that this visit occurred after the incident, which fits in with when Mr Mburuja started, his induction program and the leave he took over Christmas and into January 2022. Accordingly, I have not afforded this evidence much weight.
Ms King’s evidence was that in the period between May 2021 and her departure in July 2021, she received some general check-in calls from Momentum in relation to the workers. She did not recall being asked about the duties, training or supervision of the workers.
Similarly, Mr O’Toole and Mr Gillespie gave evidence that Momentum never asked for specifics in relation to the workers’ duties. In particular, Momentum never asked to provide a position description or a written list of duties. They both gave evidence that Momentum did not ask whether the workers were required to operate any machinery including pallet riders, whether their duties had changed, or about potential risks, training, induction and supervision at the warehouse.

Relevant guidance material

In the period before the incident, there was a range of guidance material available in relation to the duties of labour hire businesses regarding work health and safety matters.
In February 2020, Safe Work Australia published the Labour hire: duties of persons conducting a business or undertaking guide (the Labour Hire Guide), which was available online prior to the incident. The Labour Hire Guide relevantly provides:

all labour hire PCBUs and host PCBUs have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of labour hire workers engaged by, or caused to be engaged by, or whose activities are influenced or directed by the PCBU;

all duty holders in a labour hire arrangement must consult, cooperate, and coordinate with each other so far as is reasonably practicable;

before engaging labour hire workers to carry out work, a host PCBU should:

verify, in consultation with the labour hire PCBU, that the selected workers have the necessary qualifications, licences, skills, and training to carry out the work safely; and

consult with the labour hire PCBU on WHS matters including in relation to who will provide any necessary equipment such as personal protective equipment (PPE);

before placing labour hire workers, a labour hire PCBU should:

gather information about the work and the workplace/s, including the work environment/s, organisational arrangements, health and safety risks associated with the work, and any skills and knowledge the worker will require to safely undertake the work;

verify and work with the host PCBU to ensure site-specific and task-specific induction, training, and PPE is provided to labour hire workers in a way that is suitable, adequate, and readily understandable to them; and

ensure that workers have the necessary qualifications, licences, skills and training to safely carry out the work.

In August 2021, the SafeWork NSW published the Labour Hire Agencies and Group Training Organisations Work Health and Safety Self-Assessment Checklist (the Agency Checklist) and provided that labour hire businesses should:

obtain written information about the jobs, materials and substances, tools and equipment, and the environment to which workers will be exposed;

ensure that induction training at host PCBUs includes how to use the tools and equipment;

ensure that there is an established consultation arrangement plan in place with the host PCBU and workers.

In August 2021, Safe Work NSW published the Host Employer (PCBU) Induction Checklist (the Host Employer Checklist) and provided that host PCBUs should:

ensure that workers have been provided with detailed information about the type of work they will be doing, including any health and safety risks;

ensure that someone appropriately skilled or knowledgeable has shown the worker how to do the job and ensured instructions were satisfactorily understood.

In August 2019, the NSW Code of Practice “Work Health and Safety Consultation, Co-Operation and Co-Ordination” (the Consultation code), as an approved Code of Practice, was published and provided guidance on how to meet the requirements for consultation on work, health and safety matters under the Act, including:

(3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.

Honest and reasonable mistake of fact

It is a defence to an offence of strict liability that the accused honestly and reasonably but mistakenly believed in a set of facts, which if existed would have rendered his or her conduct innocent: Proudman v Dayman (1941) 67 CLR 536 at 540. The defence applies where if the facts as believed by the accused were true that the accused would have committed no offence and not some other offence than the one charged: Bergin v Stack (1953) 88 CLR 248 (Fullagar J). Once there is evidence on which the defence is raised, the prosecution must prove that the accused did not hold the belief honestly or that it was not reasonable to hold the belief: He Kaw Teh v R (1985) 157 CLR 523 at 534, 582 and 592.
The defence is a positive one. The accused must be labouring under a mistake of fact and the defence does not arise if the accused did not turn his or her mind to the question: Proudman and State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721. At common law, the defence is available to a company through the belief of one or more of its officers: Brambles Holdings Ltd v Carey (1976) 15 SASR 270.
To satisfy the reasonableness element of the offence the accused must demonstrate that he or she took reasonable care: Boucher v G J Coles Co Ltd (1974) 9 SASR 495 and Allen v United Carpet Mills Pty Ltd [1989] VR 323.

Consideration

Issue 1 Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [11] of the Summons? (Element 2)

The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].
In order to find Element 2 established, I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [11] of the Summons and that the steps were reasonably practicable.
I will now deal with the common matters that are of relevance to the issue of whether the pleaded measures in [11] of the Summons were reasonably practicable.

The pleaded risk

The pleaded risk in [10] of the Summons is:

The risk was the risk to the health and safety of workers as a result of being struck, crushed or coming into contact with mobile plant, such as electric pallet riders, while they were in operation at the workplace.

The pleaded risk related to the general class of risk to workers through the use of mobile plant, including pallet riders, at the warehouse.
A lot of the evidence focused on the specific risk that manifested in the incident, namely the risk caused by the use of a pallet rider by a worker or workers who had not been adequately trained on their use.
Care must be exercised to focus on the general nature of the pleaded risk.

The likelihood of the risk occurring

The likelihood of the risk occurring was moderate.
Momentum knew that there was a risk to the health and safety to workers at the warehouse that arose from the operation of MHE, which included forklifts.
Momentum had also placed labour hire workers with other host employers in warehouses and must also have had some knowledge of the risks posed by mobile plant in those other warehouses.
There was a large volume of guidance material available to indicate that the hazard posed by mobile plant at a workplace was a moderate risk, if proper precautions were not taken.

The degree of harm

A PCBU like Momentum, had to consider prospectively what harm could be caused if a labour hire worker was struck by mobile plant in use at the warehouse, and not just the degree of harm that might be caused by a pallet rider.
Momentum knew that Saveba operated forklifts at the warehouse and it was well known that the degree of harm that could be caused by a worker being struck by a forklift was significant and included a risk of death.

The defendant’s knowledge of the risk

The defendant knew that there were risks posed to the labour hire workers by the use of MHE at the warehouse. Ms Richards knew from the goods she saw at the warehouse that the labour hire workers would be required to use MHE, if they were limited to lifting no more than 20kg.
Ms Richards believed that forklifts and pallet jacks were the MHE in use at the warehouse and did not know what a pallet rider was, until after the incident.
I accept that Ms Richards was probably not told by Ms King about the use of pallet riders at the warehouse on 7 May 2021 or 13 May 2021 because if she was, Ms Richards would have had to ask what they were.
The defendant ought to have known that pallet riders were in use at the warehouse and presented a risk to the health and safety of the labour hire workers for the reasons that follow.
First, I am satisfied that pallet riders were in use at the warehouse when Ms Richards attended. The evidence was that the pallet riders were used frequently in daily operations at the warehouse. I accept Ms King’s evidence that they were in use at the warehouse on a daily basis in May 2021. Ms Richards had not been trained by the defendant on the kinds of MHE that could be used in a warehouse and she did not know what she was looking for. Further, it is likely that pallet riders would have been on charge in the MHE charge bay that Ms Richards had to walk past on 13 May 2021 when completing the SIR.
Second, Ms Richards had not been adequately trained on how to perform a WHS site inspection. From her evidence, she had not been trained in accordance with the processes in the Manual, been supervised in conducting previous WHS site inspections, or been assessed as competent to do so.
Third, I am also satisfied that pallet riders were in use at the warehouse when Mr Mburuja attended on 21 December 2021.
Fourth, the defendant had a WHS department that should have known what MHE was commonly in use in warehouses and how it was used.
Fifth, the defendant had extended contact with the 28 labour hire employees placed to work at the warehouse in the period from 13 May 2021 until 7 February 2022. The defendant did not have any system in place to make enquiries of the labour hire workers to find out what work they were doing, if they were using machinery or MHE, what training they had received or what supervision they were being provided. Put simply, the defendant failed to make reasonable enquiries of their own employees as to the tasks they were performing and how they were undertaking those tasks. I am satisfied that the defendant’s contact with the labour hire workers at the warehouse prioritised its commercial interests in ensuring their reliable attendance at work and their progression to full-time placement for a fee, over their health and safety.
Sixth, the defendant failed to enforce its own system of conducting a WHS site inspection every six months that would have provided the opportunity to observe the work of the labour hire workers at the warehouse. No WHS site inspection had been carried out at the time of the incident (9 February 2022) since 13 May 2021. There were no relevant COVID restrictions in place to prevent the defendant conducting a WHS site inspection in November 2021. Mr Kennedy had told Ms Richards on 1 November 2021 that he was open to site visits by Momentum. The defendant did not have in place a contractual right of entry to the warehouse to conduct a WHS site inspection. When Mr Mburuja attended the warehouse on 21 December 2021, he had an intention of conducting a WHS site inspection. His evidence was unclear as to why he did not do so, but he suggested that he was told that the operations at the warehouse were busy and behind schedule and he accepted that as a reason why he could not have contact with the labour hire workers on that day. I am satisfied that the defendant’s dealings with Saveba prioritised its business relationship over the health and safety of the labour hire workers it placed at the warehouse.
Seventh, the defendant had the opportunity to ask Saveba precisely what tasks the labour hire employees were being asked to perform and how but failed to do so. The defendant did not have in place a system of making specific enquiries of its host employers as to the type of work that the labour hire workers were being asked to perform, what machinery was involved in that work, what training the labour hire workers were receiving or what supervision they were provided with. The defendant failed to make adequate enquiries of Saveba as to the tasks the labour hire workers were performing and how they were undertaking those tasks.
Finally, there was a large volume of guidance material available regarding the risks posed by the use of mobile plant in the workplace, that referred to the pleaded risk.

The defendant’s knowledge of the ways of eliminating or minimising the risk

The guidance material set out at [141]-[145] above provided information on the processes to be undertaken by labour hire employers to gather the relevant information to ensure that it complied with its s 19(1) duty.
For the reasons given, the defendant failed to undertake adequate consultation to gather the information that it needed about the nature of the work being undertaken, the risks associated with that work and the control measures in place to address those risks.
Had the defendant made adequate enquires, it should have known that pallet riders were widely used at the warehouse and that they posed a risk to the health and safety of of its employees, and that workers did not require a HRWL to operate them.
As part of completing the SIR, the defendant sought proof that Saveba held SWMSs and SOPs relating to the work undertaken at the warehouse. The defendant knew or ought to have known from that process that Saveba had a TMP and a Traffic Management Procedure in place that provided some control measures.
The defendant did not require Saveba to provide a copy of the relevant SWMSs or SOPs. This would have made it very difficult for the defendant’s WHS employees to have any meaningful input on the safety-related issues raised by the SIR.
The defendant did not take any steps to satisfy itself that the control measures identified in the TMP or the Traffic Management Procedure were being implemented at the warehouse. The defendant knew or ought to have known that it was able to provide training to the labour hire employees, if it was necessary to do so.
There was ample guidance material available about the ways of eliminating or minimising the risk posed by the use of mobile plant in the workplace, including:

the Mobile Plant Code;

the Risks Code;

the Safe Work Australia Workplace Traffic Management Guide; and

the Safe Work Australia General Guide for Industrial Lift Trucks.

I am satisfied that the defendant knew or ought to have known that operators of mobile plant such as a pallet rider needed to be adequately trained in their safe use through structured and documented training.

The defendant’s capacity to influence and control the work at the warehouse

Section 16 of the Act provides:

(1)   More than one person can concurrently have the same duty.
(2)   Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
(3)   If more than one person has a duty for the same matter, each person-
(a)   retains responsibility for the person's duty in relation to the matter, and
(b)   must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

Both Saveba and the defendant owed a s 19(1) duty to the workers. Each of them was required to ensure the health and safety of the workers, so far as that was reasonably practicable.
The defendant’s capacity to influence and control the work of the workers was different to that of Saveba because it did not have day-to-day supervision of the workers and it was not in control of the workplace.
The particulars of breach allege that the defendant failed to take steps to inform itself about the nature of the works being performed at the warehouse, the risks associated with the work and the control measures to be implemented to deal with those risks, so that it could ensure that the labour hire workers were properly informed, trained and supervised at the warehouse.
The prosecution case is that had the defendant taken adequate steps to inform itself, it would have known that the labour hire workers were working in close proximity to pallet riders and being required to operate them, and it would have been incumbent on the defendant to take further steps to ensure that Saveba had adequate systems in place to deal with the risks posed by the pallet riders, or to train the labour hire workers itself.

Cost of the pleaded measures

No issue was raised at the hearing as to the costs of the pleaded measures being grossly disproportionate to the risk.

The particulars of breach

I will now turn to each of the pleaded particulars set out in [11] of the Summons.

(a) provide adequate information, training and instruction to workers, including:

(i) information on worker's role descriptions and specific duties with respect to the work they would be undertaking at placement businesses;

(ii) information on the risks to health and safety associated with the work that workers would be carrying out at placement businesses;

(iii) training and information as to the control measures required to be in place to protect their safety whilst undertaking duties at placement businesses.

(b) verify and document that workers understood that information, training and instruction.

These particulars can be conveniently dealt with together.
The defendant failed to obtain a written position description for the work to be performed by the labour hire workers at the warehouse. The description of the work provided to the workers before the commencement of their placement at the warehouse was rudimentary.
The defendant failed to make adequate enquiries as to the nature of the work performed at the warehouse and how the work would be undertaken.
Pallet riders were a critical piece of MHE used at the warehouse. They were essential to Saveba’s system of work which involved the transportation of goods throughout the warehouse on pallets. The evidence of the Saveba supervisors was that the labour hire workers were directed to use pallet riders to conduct some of the work and that the labour hire workers were required to have some cross-functionality in the warehouse operations, which on occasions required the use of a pallet rider. They also were essential to ensuring that labour hire workers were not required to manually lift items weighing more than 20kgs.
It was not reasonable for the defendant to conclude that the labour hire workers would perform only the tasks that Ms Richards understood to be the core tasks of a furniture assembler or QC worker for a number of reasons. First, Ms Richards did not have a good understanding from her visits to the warehouse on 7 and 13 May 2021 as to what the core tasks were. Second, it was reasonably foreseeable that the labour hire workers would be asked to perform tasks incidental or additional to their core tasks, or to fill in where they were needed, such as to fill absences related to COVID-19. The additional or incidental work referred to in the evidence was work that the labour hire employees were qualified for and capable of doing and did not vary greatly from the work on the QC Carpet. Third, the defendant did not train Ms Richards adequately to enquire about the possibility that the labour hire workers may be required to perform incidental or additional duties. Fourth, the defendant employed qualified WHS staff who would have been in a position to make a more reliable assessment of the work tasks at the warehouse.
The defendant went from providing some induction training to the labour hire workers when there were no relevant COVID-19 restrictions to no induction training when there were COVID-19 restrictions in place. Mr Attard was shown the Understanding Safety at Work video when he attended the defendant’s office for his interview with Ms Richards.
By comparison, Mr Krupowicz and Mr Fifita did not receive any form of induction from the defendant, because the COVID-19 restrictions prevented their attendance in person at the defendant’s office. However, the COVID-19 restrictions did not justify the defendant providing inadequate information, training or instruction to the labour hire workers about the risks that they may face at the warehouse and how to control them. It was incumbent on the defendant to provide some information, which it could have easily included in the email advising the labour hire workers, such as Mr Krupowicz and Mr Fifita, that they were successful in obtaining employment at the warehouse.
I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to take the steps set out in [11](a) and (b) of the Summons.

(c) making regular inquiries of workers in relation to the type of work they were conducting and the training and supervision they were receiving in relation to it.

The defendant did have in place a system of making regular telephone calls to the labour hire workers to ensure that they were attending work and were happy to continue in the placement.
The defendant did not have in place a system that required the Momentum employee making those telephone calls to ask specific questions relating to safety, in particular to ascertain the type of work the labour hire workers were doing, what equipment they were using, or the training or supervision they were receiving to permit them to do the work.
It would have been a simple process to formulate a list of safety-related questions that could have been asked of the labour hire workers when they were contacted. Any unusual responses could have then been forwarded to the defendant’s WHS employees for action, if required.
The defendant also had a system of having its Account Managers attend the warehouse to speak to the workers on site. This process was interrupted to some extent by the restrictions put in place to deal with the COVID-19 pandemic.
Nevertheless, the contact made with the labour hire workers on these occasions did not extend to making structured enquiries as to the work they were doing or the training or supervision they were being provided to do that work.
I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to take the steps set out in [11](c) of the Summons.

(d) verifying, by conducting regular site inspections/visits and/or communications with Saveba and/or workers that workers were not performing works that they were not adequately trained to perform.

(e) verifying, by conducting regular site inspections/visits and/or communications with Saveba and/or workers that workers were subject to appropriate supervision in the work they performed.

(f) verifying, by conducting regular site inspections/visits and/or communications with Saveba and/or workers, that works were being conducted in accordance with job descriptions, the signed Terms and Conditions of Business, and other representations made by Saveba.

(g) making reasonable enquiries of Saveba to confirm:

(i) the type of work the workers were to perform at the site inclusive of any specific training or experience required by workers to perform the work;

(ii) whether the defendant's workers had been appropriately inducted into the work health and safety practices and procedures of the site;

(iii) that sufficient supervision of workers’ work duties was in place;

These particulars can be conveniently dealt with together because they each relate to the communications that the defendant should have had with Saveba.
The Agency Checklist sets out a guide of practices to achieve the standards required under the Act. It provides that labor hire businesses should obtain written information about the jobs, materials and substances, tools and equipment, and the environment to which workers will be exposed.
The Labour Hire Guide relevantly requires labour hire PCBUs to:

gather information about the work and the workplace/s, including the work environment/s, organisational arrangements, health and safety risks associated with the work, and any skills and knowledge the worker will require to safely undertake the work;

verify and work with the host PCBU to ensure site-specific and task-specific induction, training, and PPE is provided to labour hire workers in a way that is suitable, adequate, and readily understandable to them; and

ensure that workers have the necessary qualifications, licences, skills and training to safely carry out the work.

The Consultation Code sets out a guide of practices to meet the requirements for consultation on work health and safety matters and to achieve the standards required under the Act.
The objective of consultation with other duty holders is that there is a shared understanding of what the risks are, which workers are affected and how the risks will be controlled. This allows duty holders to work together to plan and manage health and safety.
The Consultation Code provides that the consultation between duty holders should include:

what each worker will be doing and what plant may be used;

who has control or influence over the work or environment where the work is being performed;

identifying the workers that will be involved in the activity;

what information may be needed by another duty holder for health and safety purposes;

what is known about the risks associated with the activity; and

what will be provided for health and safety, particularly controlling risks.

The only significant consultation that occurred between the defendant and Saveba occurred at the WHS site inspection of 13 May 2021. For the reasons I have given, that consultation process was seriously inadequate.
The defendant failed to obtain a written position description from Saveba for the roles it was providing the labour hire workers to perform. This made it difficult for the workers to understand if they were being asked to undertake tasks outside of the position description.
The defendant had in place a system of conducting WHS site inspections of the premises of its host employers every six months. The WHS site inspections gave the defendant the opportunity to observe the work performed by the labour hire workers and to see Saveba’s safety-related policies and procedures in action. They also gave the defendant an opportunity to verify that what it was told about the work and safety at the site was accurate and complete. The WHS site inspections were conducted by the Senior Account Manager who had a relationship with the client host employer.
Ms Richards conducted a WHS site inspection at the warehouse on 13 May 2021. This was the only WHS site inspection conducted at the warehouse before the incident on 7 February 2022.
As I have already found, Ms Richards had not been adequately trained to conduct a WHS site inspection. The defendant had a WHS department and had employees with appropriate WHS qualifications and experience. They were not sent to WHS site inspections to assist the Account Managers but had a role reviewing the content of the completed SIR and were available to be consulted.
Ms Richards did not return to undertake a further WHS site inspection in November 2021. It was common ground that there were no restrictions in place that would have prevented the completion of a WHS site inspection in November 2021. Further, on 1 November 2021, Mr Stewart told Ms Richards that he was happy for her to come to the warehouse. An invitation that she did not take up.
Ms Richards left Momentum on 9 November 2021 and was replaced by Mr Mburuja. Mr Mburuja was in the process of completing Momentum’s four week induction program when he commenced work, but he did arrange and attend the warehouse on 21 December 2021, for a scheduled 15 minute meeting with Mr Stewart and Mr O’Toole. Mr Mburuja gave evidence that his intention was to conduct a WHS site inspection at the warehouse at around that time, but he did not explain why he did not do so, other than it was inconvenient to Saveba. Mr Mburuja was told that the warehouse was busy and behind schedule and that it was not convenient for him to speak to the labour hire workers on that day. The defendant had not negotiated a contractual right to enter the warehouse to conduct WHS site inspections, when it was appropriate to do so.
When Ms Richards and Mr Mburuja made contact with the Saveba managers and supervisors, by telephone or in person, about the labour hire workers they were not required by the defendant to make enquiries about the work to determine if the workers were being adequately trained to do it, what supervision they would be given or whether Saveba was complying with its health and safety duties. On the same point, they were not trained by the defendant in what to look for to determine if the labour hire workers were being adequately trained or supervised or if Saveba was complying with its health and safety duties.
Momentum had a WHS department and was capable of:

devising a set of proactive safety-related questions about the nature of the work, the training provided, and the supervision provided to the labour hire workers, similar to the SIR format; and

training its Account Managers to make the standardized set of enquiries.

I am satisfied that the defendant trained its Account Managers to maintain a facilitative relationship with the host employers and failed to train them or to direct them to make proactive safety-related enquiries. I am satisfied that the defendant prioritised its business relationship with Saveba by not completing the WHS site inspection when it was due in November 2021 and by failing to make proactive safety-related enquiries.
The defendant did not have a system in place to ensure that the labour hire workers received an induction when they commenced work at the warehouse. Mr Krupowicz’s evidence was that he did not receive an induction from Saveba on his first day of work at the warehouse. Mr Krupowicz’s evidence was corroborated by the inability of Saveba to produce any induction documents relating to Mr Krupowicz, despite Mr Gillespie undertaking a significant search for them. The defendant did not have in place a system of requiring proof from host employers that a labour hire worker had been inducted.
Further, while Ms Richards sighted various safety policies held by Saveba, the defendant did not have a system in place to ensure that the labour hire workers received training in the SWMSs or SOPs that were relevant to their work.
I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to take the steps set out in [11](d), (e), (f) and (g) of the Summons.

(h) provide, or require Saveba to provide, sufficient information, training and instruction to workers in relation to the risks to health and safety arising from the work.

Ms Richards was unaware that pallet riders, a piece of mobile plant used for material handling, were being used at the warehouse. In other words, she was not aware of the full extent of the use of mobile plant at the warehouse that posed a risk to the health and safety of the labour hire workers.
Accordingly, the defendant was not in a position to provide adequate information, training and instruction to the workers about the pleaded risk, and it did not do so. For the reasons given, the defendant was in breach of its s 19(1) duty for failing to gather the requisite information about the work to be performed by the labour hire workers and how it would be done.
Further, the defendant did not take adequate steps to satisfy itself that Saveba was providing training on traffic management at the site. It is unclear from the evidence whether or not Ms Richards sighted the TMP or the Traffic Management Procedure. Even if she had, she was not trained to try to assess safety policies or even to get a copy of them so that the defendant’s WHS department could review them.
I am not satisfied that by reference to the procedure adopted by the defendant that it had any meaningful understanding of what information, training and instruction the labour hire workers would be given by the defendant.
For the reasons given, the Terms did no more than restate that Saveba had statutory obligations under the Act. That did not provide any structured system of ensuring that Saveba would comply with those obligations.
Had the defendant obtained the requisite information by making proper enquiries, it would have been in a position to require Saveba to provide adequate information, training and instruction, or to have done so itself.
I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to take the steps set out in [11](h) of the Summons.

Conclusion on the Issue 1

I am satisfied beyond reasonable doubt that the defendant breached the duty its owed to the labour hire workers under s 19(1) of the Act.

Issue 2 – is the defence of honest and reasonable mistake of fact made out?

The relevant principles are set out at [181]-[183].
The defendant contends that Ms Richards was labouring an honest and reasonable mistake of fact that the labour hire workers would not be asked to operate pallet riders at the warehouse. By operation of s 244(3) of the Act, that was a mistake of fact of the defendant. Accordingly, the defendant contends that it was under no obligation to take any reasonably practicable steps relating to the operation of pallet riders by the labour hire workers at the warehouse.
The common law position is altered by s 244 of the Act in three important respects. First, the conduct of Mr Krupowicz and the Momentum labour hire workers was the conduct of the defendant. Second, the knowledge of Ms Richards, Mr Krupowicz and the other Momentum labour hire workers was the knowledge of the defendant. Third, the mistake of fact made by Ms Richards can be treated as a mistake of the defendant, irrespective of whether she is an officer of the defendant or not.
Applying those matters to the facts demonstrates that the defendant knew that:

pallet riders were widely used on a daily basis to complete tasks at the warehouse that involved the movement of goods on pallets;

Momentum labour hire workers, including Mr Krupowicz, were permitted to operate a pallet rider if they wanted to, but it was not compulsory;

the labour hire workers were expected to operate pallet riders to complete certain tasks involving the movement of goods on pallets;

the labour hire workers had received ad hoc and inadequate training on the proper operation of a pallet rider; and

the labour hire workers had not received adequate training as to traffic management rules at the warehouse.

From this knowledge, the defendant should have been on notice to make enquiries about how the risks relating to the operation of pallet riders were managed at the warehouse.
The defendant was under a duty to ensure the health and safety of the labour hire workers, in so far as that was reasonably practicable, and this informs the reasonableness of its conduct. An element of reasonable practicability provided for by s 18 of the Act, is what the defendant should have known. For the reasons given, the defendant should have known that pallet riders were widely used at the warehouse and Mr Krupowicz and other labour hire workers were operating them with ad hoc training.
The defendant did not have a structured system of making enquiries of the labour hire workers or Saveba as to what work their employees were being asked to perform, how they were expected to perform it, what equipment they were being asked to use, what training they received relating to that equipment and what supervision they were being provided with. These were all enquiries that a labour hire PCBU was advised to make in the guidance material.
I accept that Ms Richards did not know that pallet riders were used at the warehouse, between 7 May 2021 and 7 November 2021. The state of Ms Richards’ knowledge was arrived at through a combination of the following. First, the topic of pallet riders was not discussed between her and Ms King on 7 or 13 May 2021. Second, she did not recall seeing a pallet rider in operation at the warehouse. Third, she was inadequately trained in Momentum’s WHS obligations, what to look for or the kinds of MHE that were regularly used in warehouses. Fourth, a lack of regular attendance at the warehouse up to about 11 October 2021, when her access was limited by the COVID-19 restrictions. Fifth, her failure to attend the warehouse between 1 November 2021 and 9 November 2021.
In all of the circumstances, I am not satisfied that if Ms Richards was labouring under a mistake of fact because of what was not discussed between her and Ms King, namely the use of pallet riders at the warehouse, that it was a reasonable mistake of fact because she was not properly trained by the defendant to make an adequate assessment of the WHS risks present at the warehouse and the defendant failed to make adequate enquiries.
The defendant had additional knowledge being the knowledge of the labour hire workers. It failed to consider this knowledge because it did not make adequate enquiries of its own employees.
Taking into account all of the evidence, I am satisfied beyond reasonable doubt that the prosecution has established that the defendant’s belief, of what Ms Richards was not told by Ms King, was not a reasonable mistake of fact. This is because it did not take into account all of the relevant information that was available and known to the defendant.
Accordingly, I am not satisfied that the defence of honest and reasonable fact has been made out.

Verdict

I am satisfied beyond reasonable doubt that the prosecutor has proved the elements of the offence.
I am not satisfied that the defendant has made out the defence of honest and reasonable mistake of fact.
I find the defendant guilty of the s 33 offence.
I will list the matter for sentence on a convenient date.

Endnote

Amendments

29 October 2025 - [169] deleted.

Decision last updated: 29 October 2025

Medium Neutral Citation:	SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400
Hearing dates:	3, 4, 5, 6, 7, 18 and 19 March 2025; 31 July 2025
Date of orders:	02 October 2025
Decision date:	02 October 2025
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 I find the defendant guilty of the s 33 offence.
Catchwords:	CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker WORK HEALTH AND SAFETY – use of mobile plant - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – workers not given adequate training
Legislation Cited:	Work Health and Safety Act 2011
Cases Cited:	Allen v United Carpet Mills Pty Ltd [1989] VR 323 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bergin v Stack (1953) 88 CLR 248 Boucher v G J Coles Co Ltd (1974) 9 SASR 495 Brambles Holdings Ltd v Carey (1976) 15 SASR 270 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) He Kaw Teh v R (1985) 157 CLR 523 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 Proudman and State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 Proudman v Dayman (1941) 67 CLR 536 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80
Texts Cited:	NSW WorkCover Code of Practice, Work Health and Safety Consultation, Co-Operation and Co-Ordination, December 2011 Safe Work Australia - Labour hire: duties of persons conducting a business or undertaking guide - February 2020 Safe Work NSW - Host Employer (PCBU) Induction Checklist - August 2021 SafeWork NSW - Labour Hire Agencies and Group Training Organisations Work Health and Safety Self-Assessment Checklist - August 2021
Category:	Principal judgment
Parties:	SafeWork NSW (Prosecutor) Momentum Consulting Group Pty Ltd (Defendant)
Representation:	Counsel: A Mykkeltvedt (Prosecutor) M Baroni (Defendant) Solicitors: Legal, Department of Customer Service (Prosecutor) Mills Oakley Lawyers (Defendant)
File Number(s):	2024/29596
Publication restriction:	None