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 (1987) 162 CLR 514; [1987] HCA 12

SafeWork NSW v Activate Fire Pty Ltd [2017] NSWDC 66

SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47

SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160

SafeWork NSW v Pendle Ham and Bacon Pty Ltd [2025] NSWDC 63

SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491

SafeWork NSW v Rawson Homes Pty Ltd [2016] NSWDC 237

Steel Construct Australia Pty Ltd v Guilfoyle [2021] QDC 124

The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Tattam Express Pty Ltd (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
C Magee (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Coleman Greig Lawyers (Defendant)

File Number(s):

2024/353738

Publication restriction:

Nil

JUDGMENT

1. On 24 September 2024, at the application of SafeWork NSW (the prosecutor), a summons was issued by this Court alleging that Tattam Express Pty Ltd (the defendant), a person who had a work, health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) failed to comply with that duty and thereby exposed workers, in particular Mr Wayne Skinner, to a risk of death or serious injury contrary to s 32 of the WHS Act.

2. On 21 January 2025, the defendant filed a Notice of Motion seeking an order that the above summons be dismissed. The defendant also sought an order that the prosecutor pay its costs of the proceedings. In summary, the defendant’s contention is that it did not owe a duty to Mr Skinner under s 19(1) of the WHS Act, as Mr Skinner was not a worker as defined by s 7(1) of that Act. Rather, he was an “other person” to whom the defendant owed a duty pursuant to s 19(2) of the WHS Act. Accordingly, the prosecution could not succeed.

3. I have determined that Mr Skinner did not come within subss 19(1)(a) or (b) of the WHS Act, he was not someone to whom the defendant owed a duty under s 19(1) of the WHS Act. My reasons follow.

History of the proceedings

4. At the first return date of the defendant’s Motion on 6 February 2025, the Motion was stood over to enable the prosecutor to file an Amended Summons, or alternatively, a Motion seeking leave to file an Amended Summons.

5. The matter returned to court on 24 February 2025. On that date, by consent, I granted leave for the prosecutor to file an Amended Summons. After discussion with the parties, the matter was stood over to 24 March 2025, to enable the parties to determine whether there could be agreement as to the facts and evidence that go before the Court for the purposes of determining the Motion. The prosecutor indicated that if there were to be an agreed evidentiary position, it would not object to the Court dealing with the Motion on a preliminary basis.

6. Between 24 March 2025 and 7 May 2025, a series of mentions occurred in which the Court sought assistance from the parties to determine whether it had the power to hear and determine the Motion as a preliminary matter. On 7 May 2025, I determined that this Court has the power to deal with the issue raised by the Motion by way of a preliminary hearing and set the date for that preliminary hearing. Briefly, I did so for the reasons appearing at [7]–[10] below.

Dismissal of a proceeding prior to the close of the prosecution case

7. Sections 247G(2) and 247G(3)(f) of the Criminal Procedure Act 1986 (NSW) (CPA) give power to a court, in an appropriate case, to determine during a preliminary hearing that a summary prosecution should not proceed to trial: Environment Protection Authority v Eastern Creek Operations Pty Ltd (2022) 108 NSWLR 198; [2022] NSWCCA 97 per Fullerton J at [216]–[217], with whom Lonergan J agreed at [219].

8. Those provisions form part of the case management provisions which appear in Chapter 4 Part 5 Division 2A of the CPA (Division 2A). On 1 May 2025, the Industrial Relations Amendment Act 2025 (NSW) (Amendment Act) enacted s 170(4)(c) of the CPA and amended s 247A(c) of the CPA to give this Court the powers contained in Division 2A.

9. Item 1.2[3] of Schedule 1 to the Amendment Act provides that:

“An amendment made to this Act by the Industrial Relations Amendment Act 2025 extends to proceedings for an offence committed, or alleged to have been committed, before the commencement of the amendment but not if the hearing of the proceedings commenced before the commencement of the amendment.”

10. As of 1 May 2025, neither the substantive prosecution nor the defendant’s Motion had been listed for hearing. Accordingly, this Court proceeded to exercise the powers of Division 2A in respect of the substantive matter by listing the defendant’s Motion for hearing.

The relevant principles of statutory construction

11. Statutory construction begins with a consideration of the language used. Its meaning may require consideration in context, which includes the general purpose and policy of the provision and, in particular, the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47].

12. The context and purpose of a provision are important to its proper construction because the legal meaning of a provision must be determined by reference to the language of the instrument viewed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24] (Certain Lloyd’s Underwriters).

13. Determination of the purpose of a statute or a particular provision may be based not only on an express statement of purpose in the statute itself, but also by inference from its text and structure and, where appropriate, by reference to extrinsic materials. However, this process does not involve a search for what the legislature had in mind: Certain Lloyd’s Underwriters at [25]–[26].

14. Section 33 of the Interpretation Act 1987 (NSW) provides that the interpretation of a provision that would promote the purpose or object underlying the Act shall be preferred to a construction that would not do so.

15. Extrinsic materials can be used as an aid to construction, but they are not a substitute for the language considered in context and cannot displace the meaning of the text: Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518; [1987] HCA 12; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; Interpretation Act 1987 (NSW) s 34.

16. Courts have consistently applied a broad or beneficial approach to the interpretation of a section in work, health and safety legislation: Rice v Henley (1914) 19 CLR 19 at 22; [1914] HCA 75 per Isaacs J.

Relevant legal principles

17. The Amended Summons in respect of which leave to file was granted to the prosecutor on 24 February 2025 reads as follows:

“On 12 October 2022 at 68 Cranbrook Road, Batemans Bay in New South Wales, Tattam Express Pty Ltd (ACN 163 510 110) (the defendant), being a person who had a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) to ensure, so far as is reasonably practicable, the safety of workers while the workers are at work in the business or undertaking, failed to comply with its duty and the failure to comply with that duty exposed workers, in particular Wayne Skinner, to a risk of death or serious injury contrary to section 32 of the Act.”

18. Annexure A to the Amended Summons particularises that offence. The particulars of the defendant’s alleged failure to comply with the duty under s 19(1) of the WHS Act are set out at paragraph 12 of Annexure A. They are as follows:

“The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Skinner, in that it failed to take one or more of the following reasonably practicable measures to eliminate the risk to the health and safety, or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety:

a. Conducting a risk assessment in relation to the use of forklifts at the site (or an adequate risk assessment), which identified the reasonably foreseeable hazards and risks, assessed the risks, and determined the most effective controls to manage the risks;

b. Establishing a Driving Safety Zone (or zones) in the yard which were clearly marked and separated from operating forklifts by physical barriers;

c. Developing and implementing a Traffic Management Plan (TMP) which set out how traffic risks at the site were be managed, including information on the desired flow of pedestrian and vehicle movements, and illustrations of the layout of barriers, Driver Safety Zone/s and walkways;

d. Developing, implementing and enforcing a Safe Operating Procedure (SOP) for unloading trucks by forklift which specified:

i. The truck was to park in a defined bay;

ii. The truck driver should prepare the truck for unloading and move to the Driver Safety Zone;

iii. The forklift is not to commence unloading until the truck driver is in the Driver Safety Zone;

iv. If the truck driver leaves the Driver Safety Zone for any reason, the forklift operator shall stop the forklift, and not recommence unloading until the driver has returned to the Driver Safety Zone;

v. Once the unloading is completed, the forklift operator shall inform the driver they may leave the Driver Safety Zone;

e. Providing information, training and instruction to workers on a TMP and a SOP for unloading trailers, such as those set out at paragraphs (c) and (d) above;

f. Providing information and instruction to delivery drivers visiting the site on the site traffic management rules, including the requirement to remain in a Driver Safety Zone whilst the forklift was unloading the truck;

g. Implementing and enforcing its rule that persons were not to operate forklifts without a valid high-risk work licence, including by:

i. Keeping adequate records of high-risk work licences and their expiry dates;

ii. Providing adequate on-site supervision; and

iii. Taking appropriate disciplinary action against unlicenced operators;

h. Developing and implementing a requirement to complete a pre-start check for forklifts, which included a check of the forklift safety features such as horn, reversing lights, reversing beeper and seatbelt.”

19. Section 19 of the WHS Act relevantly provides:

19 Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

…

20. Section 32 of the WHS Act provides:

32 Failure to comply with health and safety duty—Category 2

A person commits a Category 2 offence if:

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

…

21. The elements of the s 32 offence for failure to comply with a health and safety duty under s 19(1) were set out by Scotting DCJ in SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 at [65] (Poletti):

“Element 1   The defendant was conducting a business or undertaking;

Element 2   The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of;

(i) workers engaged by it or workers whose activities are influenced or directed by the defendant;

(ii) while the workers were at work in the business or undertaking;

Element 3   The defendant failed to comply with its health and safety duty; and

Element 4   The failure exposed an individual to a risk of death or serious injury.”

22. Other relevant sections of the WHS Act provide as follows:

3 Object

(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and

(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and

(d) promoting the provision of advice, information, education and training in relation to work health and safety, and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.

5 Meaning of “person conducting a business or undertaking”

(1) For the purposes of this Act, a person conducts a business or undertaking—

(a) whether the person conducts the business or undertaking alone or with others, and

(b) whether or not the business or undertaking is conducted for profit or gain.

(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8) In this section, volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

7 Meaning of “worker”

(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—

(a) an employee, or

(b) a contractor or subcontractor, or

(c) an employee of a contractor or subcontractor, or

(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or

(e) an outworker, or

(f) an apprentice or trainee, or

(g) a student gaining work experience, or

(h) a volunteer, or

(i) a person of a prescribed class.

(2) For the purposes of this Act, a police officer is—

(a) a worker, and

(b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.

(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

8 Meaning of “workplace”

(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

(2) In this section, place includes—

(a) a vehicle, vessel, aircraft or other mobile structure, and

(b) any waters and any installation on land, on the bed of any waters or floating on any waters.

16 More than one person can have a duty

(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.

17 Management of risks

A duty imposed on a person to ensure health and safety requires the person—

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

The incident giving rise to the charge

23. The defendant’s Notice of Motion proceeded on the basis of an Agreed Tender Bundle (Exhibit A), including an Agreed Statement of Facts, together with other documentary material. It also included CCTV footage of the defendant’s warehouse on 12 October 2022 which included events in the lead up to the incident, as well as the incident itself (Exhibit B).

24. Briefly, the Agreed Statement of Facts for the Motion record that the defendant operated a transportation and logistics business in New South Wales. The defendant’s business included receipt of consignments delivered by various transport companies, unloading those consignments and storing them in its warehouses for subsequent delivery by its own fleet of trucks. The defendant had delivery yards in Batemans Bay, Pambula and Nowra.

25. The incident occurred at the defendant’s Batemans Bay yard on 12 October 2022 (the yard). Mr Lincoln Glendenning was the director of both the defendant and a related entity, South Coast Transport Management Pty Ltd. He oversaw the day-to-day running of the yard.

26. The defendant and Freight Specialists Pty Ltd (Freight Specialists), a transport company based in Wetherill Park, were parties to a Subcontract and Delivery Agent Service Agreement (Service Agreement). The Service Agreement provided that Freight Specialists would pick up pallets from and deliver pallets to the defendant on a daily basis. In order to fulfil the Service Agreement, truck drivers from Freight Specialists were required to attend the yard to deliver palletised goods. Mr Skinner was an employee of Freight Specialists.

27. When drivers arrived on site at the yard, the defendant would instruct them where to park and provide general information concerning the process for their unloading.

28. There were only three of the defendant’s workers at the yard overnight on 11–12 October 2022. They were Mr Glendenning and two casual warehouse employees, Mr Luke Riding and Mr Bradley Roberts. Mr Riding was a licensed forklift operator. He went home shortly after Mr Roberts, who was not a licensed forklift operator, commenced his shift.

29. Mr Skinner arrived at the yard with his truck at approximately 2.40am on 12 October 2022. He saw that another truck was being unloaded and waited until it had finished. He then drove his truck to the south yard and parked in the same position that he had done for previous deliveries.

30. Upon instruction from Mr Glendenning, Mr Skinner opened the curtains of his truck so that unloading could commence. He understood that he was to supervise the unloading to ensure that the content of the load was not damaged in the process. Mr Roberts unloaded the truck using a forklift. His speed of travel in the forklift was frequently excessive. As the truck was being unloaded, Mr Skinner was progressively opening and gating various parts of the truck and unstrapping the load. Mr Skinner was in close proximity to the forklift and walked through its line of travel, as required, to access the truck.

31. At 3.15am, Mr Roberts’ forklift narrowly missed hitting Mr Skinner who was attending to straps at the rear of the trailer while Mr Roberts lifted another pallet from the trailer in proximity to him. Mr Skinner continued to work around the truck while Mr Roberts was unloading it with the forklift. At one point, Mr Skinner moved a second forklift that was parked in the yard to create more space in which Mr Roberts could work. At 3.29am, when Mr Skinner was standing to the right of the forklift as it collected a load, Mr Roberts reversed the forklift and turned to the right, striking and running over Mr Skinner. Mr Skinner sustained a serious right leg injury, requiring surgery. He was discharged from hospital 49 days after his admission.

32. There was a significant amount of guidance material available to the defendant at the time of the incident which addressed measures that the defendant could have implemented to avoid the incident. Following the incident, the defendant made a number of changes to the way that they operated. This included the implementation and documentation of a driver safety zone in each of the three parking bays. Forklifts were not permitted to operate until the truck drivers were in the driver safety zone.

The defendant’s case

33. Central to the defendant’s argument were the particulars at paragraph 7 of Annexure A to the Amended Summons, which reads as follows:

“On 12 October 2022, Mr Skinner was a worker engaged, or caused to be engaged, by the defendant in accordance with paragraph 19(1)(a) of the Act, in that he was carrying out work in any capacity for the defendant and as an employee of Freight Specialists, a contractor to the defendant. Further, and in the alternative, Mr Skinner’s activities in carrying out work were influenced and/or directed by the defendant whilst he was working at the site, and he was therefore a worker within the meaning of s 19(1)(b) of the Act.”

34. This paragraph was the subject of the prosecutor’s amendment, as referred to above. As originally pleaded, paragraph 7 read as follows:

“On 12 October 2022 Mr Skinner was engaged or caused to be engaged by the defendant in that he was carrying out work for the defendant as an employee of Freight Specialists, a contractor to the defendant. Mr Skinner’s activities in carrying out work were influenced and directed by the defendant whilst he was working at the site.”

35. The defendant relied on the decision of Scotting DCJ in Poletti where his Honour held at [98]:

“The section 19(1) duty is owed to persons that can satisfy 3 requirements:

(1) they are a ‘worker’ as defined by section 7 of the Act; and

(2) either:

(i) they have been engaged (or caused to be engaged) by the PCBU; and/or

(ii) their work is controlled or influenced by the PCBU; and

(3) they are at work in the business or undertaking.”

36. In dealing with the construction of s 7 of the WHS Act, Scotting DCJ made the following findings at [99]–[100]:

1. The term “worker” is defined in s 7 and should be given its defined meaning in s 19, unless a contrary intention appears; and

2. In s 7, a person is a worker if they carry out work for a person conducting a business or undertaking (PCBU) and the capacities listed in s 7 relate to that same PCBU for whom the work is carried out.

37. Scotting DCJ concluded at [103] that the final reference to “business or undertaking” in s 19(1) refers to “the business or undertaking using workers in the way contemplated by s 19(1). This requires the workers to be carrying out work for the PCBU”.

38. The defendant’s contention was that, when read together, ss 7 and 19(1) relate to a worker as defined in s 7 who, at the relevant time, was carrying out work for the s 19(1) duty holder PCBU. That is, to be a worker to which s 19(1) relates, the worker had to have been carrying out work for the s 19(1) duty holder while at work in the business or undertaking of that PCBU.

39. The defendant pointed to the analysis of s 19(2) by Scotting DCJ in SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160 at [68]–[69] (NSW Bricklaying) as being consistent with its position:

“The term ‘other persons’ when used in section 19(2) is a reference to persons other than ‘workers’ who are provided for by section 19(1): SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 and S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 at [62]. This can include any person on or near a workplace.

Mr Tran was present at the site as a carpenter. He did not come within the definition of a worker provided for in section 7 of the Act because he was not performing work for the defendant or working in furtherance of the business or undertaking of the defendant: SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 at [98]–[104].”

40. The defendant’s position was that the prosecution could not establish any of the three limbs of s 19(1) as addressed by Scotting DCJ in Poletti. Firstly, Mr Skinner was not a worker for the purposes of s 7 in relation to the defendant, because he was not performing work for the defendant when he delivered the consignment to the yard. Rather, he was employed by Freight Specialists and the work that he did at the yard was in furtherance of Freight Specialists’ business or undertaking. He did not carry out work in any capacity for the defendant while in attendance as an employee of Freight Specialists.

41. Secondly, there was no material before the Court which demonstrates that the defendant engaged Mr Skinner, or caused him to be engaged, under s 19(1)(a) of the WHS Act. Rather, Mr Skinner was engaged by Freight Specialists as an employee. As part of that engagement, Freight Specialists required Mr Skinner to attend the defendant’s yard to deliver palletised goods and to facilitate delivery by removing curtains and removing or rolling up straps to enable the defendant’s forklift to collect the palletised goods.

42. Thirdly, as to whether Mr Skinner’s work as a driver for Freight Specialists was influenced or directed by the defendant under s 19(1)(b) of the WHS Act, the defendant relied on the decision of Macfarlan JA (with whom Hamill and Cavanagh JJ agreed) in HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212 at [61] (HD Projects), as set out below, in support of a submission that whether or not that were so, it was insufficient to bring him within the scope of a s 19(1) duty for the defendant:

“In reliance on the reference in s 19(1) of the WHS Act to persons who could be ‘influenced or directed’ by the person conducting a business or undertaking, HD Projects submitted that it was s 19(1) and not s 19(2) that imposed a relevant duty on it, because, it said, HD Projects was able to influence or direct the scaffolding employees and Messrs Graff and Sitauti were therefore ‘workers’ in its business and not ‘other persons’. Whether or not that was so, the submission is answered by the fact that the reference in s 19(1) to influence or direction is to the activities of the person carrying out work in the relevant business or undertaking: the closing words of s 19(1) (see [24] above) confines the workers referred to in the subsection to those ‘at work in the business or enterprise’. The scaffolding company employees were not carrying out work in HD Projects’ business but in that of Erectus.”

43. The defendant submitted that the evidence was that the conduct of Mr Skinner at the yard on 12 October 2022 was not directed by the defendant. Specifically, the following aspects of Mr Skinner’s work on 12 October 2022 were not directed by the defendant:

1. Mr Skinner’s decision to wait outside until another truck had been unloaded;

2. Mr Skinner’s decision to park where he had parked on previous visits;

3. Mr Skinner’s approach to Mr Glendenning to find out whether he would like him to open the curtains;

4. Mr Skinner’s decision to supervise the unloading of the truck by Mr Roberts;

5. Mr Skinner’s instruction to Mr Roberts that the whole trailer load was to be unloaded;

6. Mr Skinner’s opening of the truck with Mr Roberts and preparing it for unloading;

7. Mr Skinner’s decision to get the paperwork and sit out of the way while Mr Roberts was unloading the truck; and

8. Mr Skinner’s ongoing role in unstrapping and ungating the truck as the unloading continued, at times with the assistance of Mr Roberts.

44. To the extent that there was any evidence that the defendant was able to influence or direct Mr Skinner, the defendant submitted that it was limited to the ability to instruct drivers who came on site as to where they should park and provide general information about the unloading process, together with occasional verbal instruction to be aware of operating trucks and forklifts. The defendant contended that this was not sufficient to create a s 19(1) duty, particularly as the defendant would exercise a degree of influence over anyone who came into the yard, including by restricting their access to certain areas.

45. Fourthly, Mr Skinner was not working in the defendant’s business as required by s 19(1) of the WHS Act. Each of the tasks that he undertook while at the yard were part of or incidental to his duties as a truck driver for Freight Specialists and done in furtherance of its business. The fact that he was performing work at the yard and able to be influenced or directed by the defendant in the conduct of its business was not sufficient to bring him within the scope of the s 19(1) duty.

46. The defendant urged the Court to find that Mr Skinner was therefore not someone to whom a s 19(1) duty was owed. Rather, he was an “other person” to whom the defendant owed a duty pursuant to s 19(2) of the WHS Act. In that event, the prosecutor’s evidence, taken at its highest, left the prosecutor unable to prove either the second or third element of the offence under s 32 of the WHS Act with which the defendant had been charged, namely that the defendant had the pleaded s 19(1) health and safety duty with respect to Mr Skinner and failed to comply with it.

The prosecutor’s case

47. The essence of the prosecutor’s case was that it sought to hold the defendant responsible for permitting Mr Skinner to be involved in its business or undertaking. The prosecutor pointed to the fact that Mr Skinner gave direction to Mr Roberts concerning the placement of pallets that he had removed from the truck and, on one occasion, drove a forklift away from the path of the unloading process. The prosecutor contended that Mr Skinner had gone beyond the boundaries of work activities for Freight Specialists and that, by virtue of his conduct, he had become a person working in the business or undertaking of the defendant. The allegations in the Amended Summons were said to include steps that should have been taken by the defendant to exclude Mr Skinner from its business.

48. The prosecutor’s contention was that, for a PCBU to owe a duty to a person under s 19(1) of the WHS Act, the person must:

1. be a worker as defined in s 7 of the WHS Act;

2. fall within one or both classes of workers defined in subss 19(1)(a) and (b) of the WHS Act; and

3. be at work in the business or undertaking of the PCBU duty holder.

49. The prosecutor submitted that it was clear that Mr Skinner was a worker as defined by s 7 of the WHS Act, as he was an employee of Freight Specialists.

50. The prosecutor relied on SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47 at [184]–[194] (Cosentino) to submit that the two limbs of s 19(1) were distinct and that a worker need only fall within one of them to bring themselves within the benefit of the section. The prosecutor’s primary submission was that Mr Skinner was a s 19(1)(a) worker who was therefore working in the defendant’s business.

Mr Skinner was engaged or caused to be engaged by the defendant

51. The prosecutor submitted that the question of whether a worker is “engaged” or “caused to be engaged” by a PCBU is not simply determined by reference to contractual arrangements, but by assessing and drawing appropriate inferences from the evidence. In support of that submission, the prosecutor relied on the decision of SafeWork NSW v Activate Fire Pty Ltd [2017] NSWDC 66 (Activate Fire) in which Scotting DCJ considered the meaning of the terms “engaged” or “caused to be engaged”, and cited with approval at [73] the decision of R v ACR Roofing Pty Ltd (2004) 11 VR 187; [2004] VSCA 215 (ACR Roofing) (emphasis added):

“The words ‘engaged’ and ‘caused to be engaged by’ are not defined in the Act. In R v ACR Roofing Pty Ltd (2004) 11 VR 187, the Victorian Court of Appeal decided that the term ‘engaged’ has a number of meanings according to the context in which it is used. In the legislation, ‘engaged’ was not used lightly and it was clearly intended to have a meaning different to the word ‘employ’ that was also used in the legislation. The definition of ‘engage’ includes ‘to secure or obtain the services of’ whether or not there is some contractual arrangement between the provider of the services and the person who makes use of them: per Ormiston JA. Nettle JA (as his Honour then was) with whom the other members of the Court agreed, said at [54]:

‘I consider that it would make little sense to interpret ‘engaged by’ so as to restrict the operation of the section to contractors with whom the employer is in contractual relations. It does, however, make evident sense, and in my view it was intended that the expression include the engagement of any contractor in relation to matters over which the employer has control, either (a) under a contract entered into between the contactor and the employer; or (b) under a contract entered into between the contractor and some other person. Thus in my opinion a contractor could just as well be regarded as engaged by the employer in relation to matters over which the employer has control if the contractor were engaged directly by the employer under a contract with the employer, or by another contractor under a sub-contract, or by a sub-contractor under a sub, sub-contract, or under a sub, sub, sub-contract or some remoter species of sub-contract; regardless of the layers of contractual relations that might separate the contractor from the employer.’”

52. The prosecutor further noted that Scotting DCJ’s decision in SafeWork NSW vPendle Ham and Bacon Pty Ltd [2025] NSWDC 63 held at [363] that “the phrase ‘cause to be engaged by’ is a wider concept by reference to the ordinary meaning of those words”.

53. The prosecutor asserted that the evidence, taken at its highest, established that Mr Skinner was a s 19(1)(a) worker who was engaged or caused to be engaged by the defendant, because:

1. The defendant’s business included the receipt, unloading and storage of consignments delivered by various transport companies.

2. The defendant was in control of the yard and had oversight of all work undertaken there, including the receipt of deliveries.

3. The defendant was in a contractual relationship with Freight Specialists.

4. Mr Skinner was an employee of Freight Specialists.

5. The contract between the defendant and Freight Specialists required Freight Specialists to deliver pallets to the defendant on a daily basis and, to fulfil the agreement, truck drivers from Freight Specialists were required to attend the yard.

6. The effect of the agreement between the defendant and Freight Specialists was to secure the services of a truck driver to attend the defendant’s business and undertake work by facilitating the unloading of consignments.

54. The prosecutor’s contention was that the work undertaken by Mr Skinner at the yard on 12 October 2022 was therefore in furtherance of the business of the defendant, making him a worker carrying out work “in any capacity” for the defendant and as an employee of a contractor. This was said to be reflected in paragraph 5 of the Statement of Agreed Facts which reads as follows:

“…truck drivers from Freight Specialists were required to attend the yard to deliver palletised goods and to facilitate the delivery, including by removing curtains and removing/rolling up straps to enable forklifts to collect the palletised goods.”

55. Therefore, the prosecutor submitted that the effect of the agreement between Freight Specialists and the defendant was to cause Mr Skinner to be engaged by the defendant. The prosecutor submitted that if this argument is successful, there can be no debate that Mr Skinner was at work in the business or undertaking because he was engaged, or caused to be engaged, by it.

Mr Skinner’s work activities were influenced or directed by the defendant

56. The prosecutor asserted that the proper construction of s 19(1)(b) of the WHS Act imposes a duty on a PCBU to ensure, so far as is reasonably practicable, the health and safety of any workers that they have the capacity to influence or direct in carrying out work. The worker is therefore able to carry out work activities for a PCBU other than the relevant PCBU duty holder whilst also being influenced or directed by the PCBU duty holder the subject of the charge. This was said to be supported by the use of the indefinite article in the s 7 definition of a worker as someone who carries out work in any capacity for “a” PCBU, including in one of the capacities listed in the non-exhaustive list in that section. To fall within the ambit of s 19(1)(b), it was said that the worker need only be influenced or directed by the duty holder PCBU while carrying out their work activities as a s 7 worker (for the same or another PCBU).

56. The prosecutor submitted that a requirement that the work be carried out for the PCBU that is the subject of the charge would render s 19(1)(b) otiose. It was also said to be inconsistent with the provision in s 16 of the WHS Act for more than one person to have the same duty. Further, the prosecutor submitted that the defendant’s division of the workers exemplified in s 7(1) as “s 19(1)(a) workers” (s 7(1)(a)–(c)) and “s 19(1)(b) workers” (s 7(1)(d)–(i)) could not be sustained as there were workers in that second group, such as volunteers or apprentices, who could equally be workers who were “engaged or caused to be engaged”, and thus fall within s 19(1)(a) of the WHS Act.

57. The prosecutor contended that its construction of s 19(1)(b) gives effect to the principle that legislation concerned with industrial safety should be construed “so as to give the fullest relief which the fair meaning of its language will allow”: Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384; [1913] HCA 60 (Isaacs J). In support of its submission, the prosecutor relied on the “Explanatory Memorandum – Model Work Health and Safety Bill” published by Safe Work Australia in 2023. Save for numbering, the relevant portions of that document are in identical terms to the Explanatory Memorandum to the Work Health and Safety Bill 2011 (Cth), which reads as follows:

“Clause 19 - Primary duty of care

19. Clause 19 sets out the primary work health and safety duty which applies to PCBUs.

20. The PCBU has a duty to ensure, so far as is reasonably practicable, the health and safety of workers that are:

directly engaged to carry out work for their business or undertaking

placed with another person to carry out work for that person, or

influenced or directed in carrying out their work activities by the person,

while the workers are at work in the business or undertaking.

21. Duties of care are imposed on duty holders because they influence one or more of the elements in the performance of work and in doing so may affect the health and safety of themselves or others. Duties of care require duty holders—in the capacity of their role and by their conduct—to ensure, so far as is reasonably practicable, the health and safety of any workers that they have the capacity to influence or direct in carrying out work.

Primary duty of care not limited to physical ‘workplaces’

22. The primary duty of care is tied to the work activities wherever they occur and is not limited to the confines of a physical workplace.”

59. The prosecutor asserted that the evidence, taken at its highest, established that Mr Skinner was a s 19(1)(b) worker whose work was influenced or directed by the defendant, because:

1. Mr Skinner was a s 7 worker because he was carrying out work for Freight Specialists as one of its employees.

2. Mr Skinner was carrying out that work in a place where he was required to go while at work, namely, the yard.

3. Mr Skinner attended the yard to conduct a work activity in his capacity as a Freight Specialists employee performing work (facilitating the delivery of a truckload of palletised goods).

4. The defendant was in control of the yard and had oversight of all work undertaken there.

5. The industry guidance material demonstrates that the defendant had a high capacity to influence and control work and risks at its workplace.

6. Prior to the incident, Mr Skinner had delivered consignments to the defendant’s yard regularly – approximately five nights per week over five months.

7. The defendant had the capacity to influence or direct the way in which Mr Skinner performed his work.

Mr Skinner was working in the defendant’s business or undertaking

60. Further, the prosecutor contended that whether Mr Skinner was a s 19(1)(a) or s 19(1)(b) worker, the evidence, when taken at its highest, established that he was a worker in the business of the defendant on 12 October 2022. The prosecutor submitted that the words “at work in the business or undertaking” should be given their ordinary meaning, rather than meaning “for the business or undertaking”. Further, this issue was said to arise only if the Court rejected the prosecutor’s primary argument that Mr Skinner was a s 19(1)(a) worker, it being self-evident that a person engaged or caused to be engaged by the duty holder PCBU was a worker in that business.

61. The prosecutor submitted that Mr Skinner could be at work in the business or undertaking of both Freight Specialists and the defendant. In support of that submission, the prosecutor pointed to the common scenario on a building site of the employee of a subcontractor being at work in the business or undertaking of both their employer (as a s 7(1)(a) worker) and the principal contractor (as a s 7(1)(c) worker). In submitting that “in” was a relational term, the prosecutor relied on the decision of French CJ in The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [31] (footnotes omitted):

“Relational terms such as ‘connected with’ appear in a variety of statutory settings. Other examples are: ‘in relation to’; ‘in respect of’; ‘in connection with’; and ‘in’. They may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases.”

62. The prosecutor submitted that there was no issue concerning whether Mr Skinner was a worker, as he was plainly an employee of Freight Specialists. The prosecutor contended that a worker of one PCBU could be at work in the business or undertaking of another PCBU if there was sufficient connection between their work and the work activity controlled by the PCBU that was the relevant duty holder. This was said to be consistent with the express words of s 19, the objects of the WHS Act in s 3 and the Explanatory Memorandum. The contrary position was said to be contrary to the plain meaning of ss 7 and 19, and inconsistent with s 16, which recognises that more than one person can have the same duty.

63. The sufficient connection between Mr Skinner and the work activity of the defendant such that Mr Skinner was at work in the defendant’s business or undertaking was said to arise from the following matters:

1. Mr Skinner was in attendance at the yard, assisting with the unloading of the truck.

2. The work that Mr Skinner was doing was integral to the work activity of the defendant and the two were interrelated in that the defendant could not unload the truck without Mr Skinner being present and facilitating the delivery, including by opening the trailer doors.

3. Mr Skinner was not excluded from the work activity by any direction or instruction from the defendant.

4. Mr Skinner actively participated in the defendant’s work activity, for example, by directing the placement of pallets and moving one of the defendant’s forklifts that was impeding the delivery process, and therefore progressed the defendant’s business and acted within its ambit.

5. The defendant had the capacity to direct Mr Skinner not to be involved in its work activity, such as by directing him to stand somewhere which removed him from the unloading process. In failing to do so, the defendant permitted Mr Skinner to be involved in its work activity and therefore its business.

64. The prosecutor contended that to the extent that Scotting DCJ found in Poletti that the phrase “in the business or undertaking” means “for the business or undertaking”, it was wrong and should not be followed. The prosecutor pointed to the alternative charge laid in that matter, with the result that little turned on that aspect of Scotting DCJ’s decision. The prosecutor further contended that both Poletti and HD Projects should be distinguished on the facts, in that there was no contractual relationship in those matters between the entity employing the injured worker and the defendant.

65. Finally, the prosecutor contended that the defendant’s submissions failed to have regard to the ability of more than one PCBU to concurrently have the same duty. Further, and consistent with the submission made about the defendant’s interpretation of s 19(1)(b) itself, it was said that to read “in the business” as “for the business” would render s 19(1)(b) otiose.

66. The prosecutor’s ultimate submission was that, because the evidence established that Mr Skinner was a worker as defined in either or both of subss 19(1)(a) and 19(1)(b), the defendant’s Motion should be dismissed.

Defendant’s reply

67. The defendant submitted that the prosecutor’s construction is inconsistent with the text of the section and its context within the legislative scheme of Part 2 of the WHS Act. The defendant contended that to fall within either of the two classes of workers to whom a s 19(1) duty is owed, a worker has to carry out work in any capacity for the duty holder PCBU (s 7) and be at work in the business or undertaking of that PCBU. The defendant pointed to the emphasis in the Explanatory Memorandum, in respect of both sets of workers, that they were carrying out work for the duty holder PCBU.

68. The defendant submitted that it did not take steps to secure or obtain the services of Mr Skinner. Rather, it was Freight Specialists who took steps to secure or obtain the services of the defendant by engaging it as a subcontractor Delivery Agent. Freight Specialists also took steps to secure or obtain the services of Mr Skinner as an employee in its business or undertaking. Further, the defendant submitted that the prosecutor’s position that it is sufficient for a worker to be at work in a PCBU if there is sufficient connection between its work activity and the business of the duty holder PCBU is contrary to the principles set out in HD Projects, Poletti and NSW Bricklaying.

69. In oral submissions, the defendant submitted that it would be a perverse outcome if a worker’s actions in engaging themselves in the activity of another PCBU created a s 19 duty for that other PCBU. The effect of the prosecutor’s argument was that Mr Skinner created a s 19(1) duty by his actions and the defendant failed to comply with it because they did not prevent him from creating that duty. The defendant contended that the duty has to exist before the work activity is undertaken and cannot be created part way through the work activity.

70. The defendant further contended that the position of the prosecutor fails to address the purpose of s 19(2) and pointed to the scheme of the WHS Act which recognises that a PCBU owes a duty, not just to its workers, but also to other persons who interact with it. Finally, the defendant pointed to the connection between the meaning of worker in s 7 and its usage in s 19(1).

Consideration

What is in issue

71. There are two central issues of contention between the parties. The first is the interrelationship between ss 7 and 19(1) of the WHS Act, and whether the reading of those sections together requires a s 7 worker to be carrying out work for the s 19(1) PCBU duty holder in order to have the benefit of a s 19(1) duty. The second and related point of contention is whether Mr Skinner was a worker to whom the defendant owed a duty under s 19(1) of the WHS Act, or whether he was an “other person”, and therefore fell within the scope of s 19(2) of that Act.

The scheme of the WHS Act

72. The relevant sections of the WHS Act have been set out above at [19]–[22].

73. Section 3 of the WHS Act sets out its purpose. In short, it is to provide for a nationally consistent framework to secure the health and safety of workers and workplaces. The WHS Act seeks to protect workers and other persons from harm to their health and safety through the elimination or minimisation of risks arising from work. It provides that workers and other persons should be given the highest level of protection against harm to their health and safety from hazards and risks arising from work as is reasonably practicable.

74. The principal duty holder under the WHS Act is a PCBU. Consistent with the object of the WHSAct, s 5 defines a PCBU in very broad terms.

75. Also consistent with the object of the WHS Act is the broad definition of a worker in s 7(1). A worker is a person who carries out work in any capacity for a PCBU, including in any of the capacities listed in the provision. It is clear both from the terms of the provision itself and the Explanatory Memorandum that the types of workers enumerated in the section are illustrative only and are not intended to be exhaustive.

76. Also broad and consistent with the object of the WHS Act is the definition of a workplace in s 8 of that Act. The term “workplace” is a place where work is carried out for a business or undertaking and extends to any place where a worker goes, or is likely to be, while at work.

77. Section 16 provides that two persons can hold the same duty. This is commonly seen on construction sites where employees of subcontractors are workers for their direct employer (s 7(1)(a)) and for the principal contractor who has engaged their employer to work on the site (s 7(1)(c)).

78. Section 17 of the WHS Act requires a person upon whom that Act imposes a duty to ensure health and safety to eliminate risks to health and safety so far as is reasonably practicable. Where elimination of the risk is not reasonably practicable, s 17 requires the duty holder to minimise those risks so far as is reasonably practicable. The scheme of the Act therefore requires a duty holder to anticipate potential risks to health and safety presented by their business or undertaking, including by taking steps to identify any such risks.

79. The primary duty of care is set out in s 19 of the WHS Act. Section 19(1) creates a positive duty on a PCBU to ensure, so far as reasonably practicable, the health and safety of its workers. When read together with s 7, s 19(1) creates a positive duty for a PCBU to ensure, so far as reasonably practicable, the health and safety of two groups of people.

80. The first group, identified in s 19(1)(a), consists of persons carrying out work in any capacity for a PCBU that has engaged them or caused them to be engaged while they are at work in the business or undertaking of that PCBU. I accept the submission of the prosecutor, consistent with the authorities set out above upon which it relies, that the term “engaged” is broader than “employed” and that the persons captured by the term “caused to be engaged” is broader still. Examples of persons in this group would include an employee of the PCBU, a contactor or subcontractor of the PCBU or a person employed by such a contractor or subcontractor. It could also include an apprentice or trainee. It would extend to persons engaged quite remotely, such as an employee of a sub, sub, subcontractor: ACR Roofing at [54] (Nettle JA, with Ormiston JA agreeing at [1] and Vincent JA agreeing at [2]).

81. The second group, identified in s 19(1)(b), consists of persons whose activities in carrying out work in any capacity for a PCBU while they are at work in the business or undertaking of that PCBU are influenced or directed by that PCBU. This group might include a student gaining work experience or an employee of a labour hire company assigned to work in the duty holder PCBU’s business or undertaking. It might also include a volunteer.

82. Therefore, to fall within the ambit of a s 19(1) worker, it is apparent that 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. To so find is not to read the final words of s 19(1) as “for” rather than “in” the business or undertaking. Rather it is because, by virtue of the definition in s 7, a person can only be a “worker” of a PCBU if they carry out work, in some capacity, including in the various capacities listed in s 7, for that PCBU. The requirement that the worker be at work in the business or undertaking of the duty holder PCBU operates as a limitation on the PCBU’s duty to its worker, namely to when the worker is at work.

83. Other persons whose health and safety may be impacted by the work carried out by the PCBU are protected by s 19(2) of the WHS Act. The PCBU has a duty to ensure, so far as is reasonably practicable, that the health or safety of such persons is not put at risk from work carried out as part of the business or undertaking. Section 19(2) applies to persons who do not come within the ambit of a s 19(1) worker: SafeWork NSW v Rawson Homes Pty Ltd [2016] NSWDC 237 at [36].

84. Accordingly, to the extent that the prosecutor submits that the protection of a person as a worker under s 19(1) applies to a person carrying out work for a PCBU other than the duty holder PCBU, but in the business or undertaking of the duty holder PCBU that is the subject of the charge, I reject that submission. 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 PCBU.

85. This construction of the provision is consistent with the object of the WHS Act as set out in s 3. That object distinguishes between “workers” and “other persons” and provides that the purpose of the WHS Act is to protect both groups from risks arising from work. That is, this construction does not exclude a person in Mr Skinner’s position from the protection of the WHS Act, and so does not undermine its object. Such persons have the benefit of protections under s 19(2) of the Act.

86. Nor does the rejection of the prosecutor’s contention render s 19(1)(b) otiose. The examples that I have listed at [81] above illustrate that there are persons who undertake work activity for a PCBU who are not engaged or caused to be engaged by that PCBU. Therefore, absent the operation of s 19(1)(b) of the WHS Act, they would fall outside the s 19(1) protection afforded to workers notwithstanding their inclusion in the definition of a “worker” in s 7 of the Act. Such an outcome would be perverse. The irresistible conclusion is that the two-limbed definition of “worker” in subss 19(1)(a) and 19(1)(b) has been formulated to capture the breadth of persons who fall within the definition of a worker as set out in s 7.

87. I am fortified in my view as to the interrelationship between ss 7 and 19(1) of the WHS Act by considering the application of the facts in this matter to the construction of the legislation for which the prosecutor advocates. It is to that exercise that I now turn.

The facts of this matter

88. It was uncontroversial that in an application of this type, the Court considers the evidence taken at its highest: Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 at [47].

89. It was also uncontroversial that, to attract the duty of care owed to a worker under s 19(1), a person need only fall within one of the limbs of s 19(1): Cosentino at [184]–[194]; Steel Construct Australia Pty Ltd v Guilfoyle [2021] QDC 124 at [69]–[70].

90. As set out above, the health and safety duty created by s 19(1) is for the benefit of two groups of people: those encompassed by s 19(1)(a) and those encompassed by s 19(1)(b) of the WHS Act. Accordingly, the critical question is whether Mr Skinner falls within one (or both) of those two groups.

Was Mr Skinner a worker who was engaged or caused to be engaged by the defendant?

91. It is an agreed fact that Mr Skinner was an employee of Freight Specialists. In addition, the Tender Bundle contains Mr Skinner’s pay records as an employee of Freight Specialists in the period from 10 September 2022 to 28 October 2022. It is agreed that Freight Specilaists employed Mr Skinner as a truck driver and had done so for approximately five months prior to the incident. It is also an agreed fact that in the course of that employment, Mr Skinner made deliveries to the defendant approximately five nights per week.

91. Contrary to paragraph 7 of the Amended Summons, Freight Specialists was not a contractor to the defendant. The position was in fact the reverse. It was Freight Specialists who engaged the defendant. Freight Specialists was performing a service delivering freight for its clients. It serviced clients on the South Coast by engaging the services of the defendant. Freight Specialists engaged the defendant to take delivery of the freight that it was contracted to deliver at the yard, to store that freight at the yard and then to deliver that freight from the yard to the destination required by the contract between Freight Specialists and its client.

92. The Agreed Tender Bundle included an extract from the website of Freight Specialists which stated, among other things:

“We make full use of a network of service providers that are fully integrated into the businesses operating, service, and training and compliance systems.

This means that we go where no other company currently goes. It’s not a problem for us to reach even the furthest corners of the country...”

94. Under the heading “Wherever Your Business Needs to Be, We Can Be There Too”, the Freight Specialists website states, “Our transport services operate over a unique regional network which allows us to serve customers in regional locations throughout Australia and New Zealand”. The defendant was part of this regional network.

95. The Subcontractor and Delivery Agent Service Agreement within the Agreed Tender Bundle was between Freight Specialists as the principal contractor and the defendant as the subcontractor/delivery agent. Mr Glendenning signed that document to confirm that “I have read and understand the Subcontractor or Delivery Agent service agreement conditions provided by Freight Specialists and agree to adhere to these at all times. I am authorised to sign on behalf of the Subcontractor or Delivery Agent”. While I will not set out further details, it is clear from the terms of that Agreement that the defendant was a subcontractor of or delivery agent for Freight Specialists and undertaking work at the direction and control of Freight Specialists.

96. I reject the submission that Mr Skinner was engaged or caused to be engaged by the defendant and was therefore a worker in its business. Contrary to paragraph 7 of the Amended Summons, Mr Skinner was not working for the defendant. As submitted by the defendant, it did not require anybody in particular to drive the Freight Specialists truck. It did not engage Mr Skinner to drive the truck. Freight Specialists engaged Mr Skinner to drive the truck. The frequency with which Mr Skinner was required by Freight Specialists to attend the defendant’s yard and facilitate the unloading of his truck, enabling the defendant to meet its contractual obligations, did not make him a person whose services the defendant had engaged or caused to be engaged by virtue of its contract with Freight Specialists. Nor did the defendant engage Freight Specialists. Accordingly, Mr Skinner was not a worker to whom a work health and safety duty was owed under s 19(1)(a) of the WHS Act.

Was Mr Skinner a s 19(1)(b) worker?

97. As stated above, in the event that Mr Skinner was found not to be engaged or caused to be engaged by the defendant, the prosecutor’s position was that Mr Skinner, while carrying out work as an employee of Freight Specialists, was sufficiently influenced in his work by the defendant that he attracted the duty under s 19(1) of the WHS Act. That is, he was a s 7 worker (because he was an employee of Freight Specialists), he was carrying out work (because Freight Specialists had directed him to undertake the delivery to the defendant) and he was conducting that work in the business or undertaking of the defendant because he was carrying out his work activity at the yard which was controlled by the defendant. Further, the performance of his work activity in the yard meant that the defendant had a degree of ability to control or influence his work activity.

98. I have already set out my reasons for finding that Mr Skinner could not be a s 19(1)(b) worker unless he was carrying out work for the defendant in some capacity. Accordingly, the above argument must fail. However, that does not entirely resolve the matter. The defendant’s contention was that Mr Skinner had gone beyond the boundaries of work activities for Freight Specialists and that, by virtue of his conduct, had become a person working in the business or undertaking of the defendant. Arguably, if Mr Skinner were working in that capacity, he was, to that extent, carrying out work for the defendant.

99. There is no doubt that the defendant had some degree of influence over the work activities undertaken by Mr Skinner at the yard. As submitted by the prosecutor, the geographic location of his activity was a relevant factor. However, the weight of the evidence was that, as a contractor to Freight Specialists, the defendant was performing work to meet the requirements of Freight Specialists, directed to an extent by Mr Skinner. The agreed facts record that Mr Skinner had control of the truck and provided the defendant’s workers with access to the load. Mr Skinner advised the defendant’s workers about the content of the truck which needed to be unloaded, and supervised that work. Further, as submitted by the defendant, some (but not all) of the matters in connection with which the defendant exercised control over Mr Skinner could apply to anyone who might attend the yard.

100. As the decisions of HD Projects, Poletti and NSW Bricklaying demonstrate, the ability of a PCBU to influence or direct someone’s work activity is not sufficient to make them a worker in the business or undertaking conducted by that PCBU. The defendant’s position differs factually from those authorities, all of which concerned construction sites, because Freight Specialists had a direct contractual relationship with the defendant. Nonetheless, that contractual relationship, and the activities which flowed from it, do not establish that Mr Skinner was undertaking work in some capacity for the defendant.

101. I note reliance by the prosecutor upon the fact that the work which Mr Skinner was doing was integral to the work activity of the defendant, and interrelated in that the defendant could not unload the truck without Mr Skinner being present and facilitating the delivery, including by opening the trailer doors. The prosecutor points to the defendant’s capacity to direct Mr Skinner not to be involved in its work activity, such as by directing him to stand somewhere which would remove him from the unloading process. The prosecutor asserts that by failing to do so, the defendant permitted Mr Skinner to be involved in its work activity and therefore its business.

102. However, had the defendant done what the prosecutor alleges that it should have done in the measures articulated in subss 12(b), (d) and (f) of Annexure A to the Amended Summons, set out at [18] above, and told Mr Skinner to park and open his truck and then move to a driver safety zone so that he did not involve himself in and was excluded from the defendant’s work activity, the defendant would have been unable to undertake its work without Mr Skinner engaging in many of those same work activities: parking and opening the truck, unstrapping the load and directing the defendant as to the content of the truck that needed to be unloaded.

103. As submitted by the defendant, the effect of the prosecutor’s argument is that a person who would otherwise not be a worker for the purposes of s 19(1) could, by their conduct, transform themselves from an “other person” to a worker to whom a s 19(1) duty is owed. That cannot be the effect of s 19(1)(b), forming as it does, part of a legislative scheme which casts a PCBU’s strict criminal liability in terms of its ability to anticipate and take action to eliminate or minimise risks to health and safety. Further, while s 19 of the WHS Act creates a primary duty of care both to workers and to other persons, consistent with the object in s 3 of that Act, the duty to workers is a positive duty (ensuring their health and safety to the extent reasonably practicable), whereas the duty to other persons is a negative one (ensuring to the extent reasonably practicable that their health and safety is not put at risk).

104. Therefore, I do not accept that, by undertaking a very small number of tasks which were incidental to his role as a Freight Specialists employee and from which he was not excluded by the defendant, such as moving a second forklift out of the path of the forklift being used to unload his truck, and directing Mr Roberts about where to set down some pallets, Mr Skinner was someone working for the defendant in its business. Accordingly, I cannot accept the prosecutor’s submission that Mr Skinner was a s 19(1)(b) worker for the defendant.

105. Two further matters deserve mention. The first is that, as noted above, the prosecutor contended in oral submissions that there could not be any debate that Mr Skinner was a worker as defined by s 7 of the WHS Act because he was plainly an employee of Freight Specialists. However, the defendant asserted that Mr Skinner was not a worker for the defendant when he delivered the consignment to the yard on 12 October 2022 and therefore did not meet the first limb of the test in [98] of Poletti. The relevant question is whether the worker works for the PCBU which is the duty holder PCBU. This was acknowledged in [103] of Poletti and was achieved by reading “in the business or undertaking” as “for the business or undertaking”. However, for the reasons that I have explained above, that is the result of the operation upon s 19(1) of the definition of a worker in s 7.

106. Finally, I note that it was an agreed fact that, on the night in question, Mr Glendenning, Mr Riding and Mr Roberts were the defendant’s only workers at the yard. The prosecutor submitted that this was not inconsistent with its position. However, it is difficult to see how that can be reconciled with the particulars in paragraph 7 of the Amended Summons.

107. As I have found that Mr Skinner did not come within subss 19(1)(a) or (b) of the WHS Act, he was not someone to whom the defendant owed a duty under s 19(1) of the WHS Act.

Next steps

108. Late yesterday afternoon, my chambers received correspondence from the prosecutor requesting that, in the event that the judgment was adverse to them, I refrain from entering final orders. The prosecutor sought this course to allow it time to consider the judgment and the merit of any application under the Criminal Appeal Act 1912 (NSW) or the Crimes (Appeal and Review) Act 2001 (NSW).

109. As a result of receiving that correspondence, I consulted with the parties as to the appropriate orders to be made today.

Orders

110. Accordingly, I make the following orders:

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.

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Decision last updated: 08 August 2025