SafeWork NSW v Tattam Express Pty Ltd - [2025] NSWIC 7

Industrial Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Tattam Express Pty Ltd [2025] NSWIC 7
Hearing dates: 29 July 2025
Date of orders: 8 August 2025
Decision date: 08 August 2025
Before: Paingakulam J
Decision:
(1) I find that Mr Skinner is not a worker for the purposes of s 19(1) of the WHS Act.
(2) I stand the matter over to 10am on 8 September 2025.

Catchwords:
CRIMINAL LAW — work health and safety — offences — category 2 — application to dismiss proceedings prior to the close of the prosecution case — whether defendant owed a duty to injured worker under s 19(1) Work Health and Safety Act 2011 (NSW) (WHS Act) as pleaded — interrelationship of ss 7 and 19(1) of the WHS Act — statutory construction of WHS Act — principles of statutory interpretation — purpose of WHS Act is to provide for a nationally consistent framework to secure the health and safety of workers and workplaces — to fall within the ambit of a s 19(1) worker, the person to whom the duty is owed must, in some capacity, be carrying out work for the PCBU duty holder while at work in their business or undertaking — other persons whose health and safety may be impacted are protected by s 19(2) of the WHS Act — when viewed in the context of the scheme of the WHS Act as a whole and because of the definition of “worker” in s 7, the worker referred to in s 19(1) must be carrying out work, in some capacity, for the duty holder conducting a business or undertaking — worker in this case not a worker for the defendant under subss 19(1)(a) or (b) of the WHS Act — defendant did not owe a duty to worker under s 19(1) of the WHS Act — prosecution dismissed — costs awarded to defendant

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Industrial Relations Amendment Act 2025 (NSW)
Interpretation Act 1987 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Bill 2011 (Cth)

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Bull v Attorney General (NSW) (1913) 17 CLR 370; [1913] HCA 60
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21
Environment Protection Authority v Eastern Creek Operations Pty Ltd (2022) 108 NSWLR 198; [2022] NSWCCA 97
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v ACR Roofing Pty Ltd (2004) 11 VR 187; [2004] VSCA 215
Re Bolton; Ex Parte Beane

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWIC 7
Decision Date: 08 August 2025

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Tattam Express Pty Ltd in the Local Court of New South Wales. The dispute centred around whether the defendant owed a duty of care to an injured worker under section 19(1) of the Work Health and Safety Act 2011 (NSW). The defendant applied to dismiss the proceedings before the close of the prosecution case, arguing that it did not owe a duty to the worker under section 19(1) as alleged. The court was tasked with determining the interrelationship of sections 7 and 19(1) of the Act, as well as applying principles of statutory interpretation to ascertain the scope and purpose of the Act.

The primary issue before the court was whether the worker, Mr Skinner, was a "worker" as defined in section 7 of the Act and thus owed a duty of care under section 19(1). The court considered the statutory construction of the Act, focusing on its purpose to provide a consistent framework for securing the health and safety of workers. The court examined the definitions and scope of "worker" under section 7, concluding that for a person to be owed a duty under section 19(1), they must be carrying out work for the duty holder in their business or undertaking. Other persons whose health and safety may be impacted are protected by section 19(2). After careful consideration of the statutory text and context, the court found that Mr Skinner did not meet the criteria to be considered a "worker" under the Act.

In reaching its decision, the court held that Mr Skinner was not a worker for the purposes of section 19(1) of the Act. Consequently, Tattam Express Pty Ltd did not owe a duty to Mr Skinner under section 19(1). The prosecution was dismissed, and the court awarded costs to the defendant. The matter was stood over to a later date for further proceedings if necessary.

Orders

Orders of the court

(1) I find that Mr Skinner is not a worker for the purposes of s 19(1) of the WHS Act.

(2) I stand the matter over to 10am on 8 September 2025.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Tattam Express Pty Ltd [2025] NSWIC 7
Hearing dates:	29 July 2025
Date of orders:	8 August 2025
Decision date:	08 August 2025
Before:	Paingakulam J
Decision:	(1) I find that Mr Skinner is not a worker for the purposes of s 19(1) of the WHS Act. (2) I stand the matter over to 10am on 8 September 2025.
Catchwords:	CRIMINAL LAW — work health and safety — offences — category 2 — application to dismiss proceedings prior to the close of the prosecution case — whether defendant owed a duty to injured worker under s 19(1) Work Health and Safety Act 2011 (NSW) (WHS Act) as pleaded — interrelationship of ss 7 and 19(1) of the WHS Act — statutory construction of WHS Act — principles of statutory interpretation — purpose of WHS Act is to provide for a nationally consistent framework to secure the health and safety of workers and workplaces — to fall within the ambit of a s 19(1) worker, the person to whom the duty is owed must, in some capacity, be carrying out work for the PCBU duty holder while at work in their business or undertaking — other persons whose health and safety may be impacted are protected by s 19(2) of the WHS Act — when viewed in the context of the scheme of the WHS Act as a whole and because of the definition of “worker” in s 7, the worker referred to in s 19(1) must be carrying out work, in some capacity, for the duty holder conducting a business or undertaking — worker in this case not a worker for the defendant under subss 19(1)(a) or (b) of the WHS Act — defendant did not owe a duty to worker under s 19(1) of the WHS Act — prosecution dismissed — costs awarded to defendant
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Industrial Relations Amendment Act 2025 (NSW) Interpretation Act 1987 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Bill 2011 (Cth)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Bull v Attorney General (NSW) (1913) 17 CLR 370; [1913] HCA 60 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 Environment Protection Authority v Eastern Creek Operations Pty Ltd (2022) 108 NSWLR 198; [2022] NSWCCA 97 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v ACR Roofing Pty Ltd (2004) 11 VR 187; [2004] VSCA 215 Re Bolton; Ex Parte Beane