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
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- Case
- [2025] NSWIC 7
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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