In SafeWork NSW v Tattam Express Pty Ltd [2025] NSWIC 7, the Industrial Court of NSW provides further clarification on the categories of “worker” under WHS laws for when a duty is owed. In doing so, the Court stopped a WHS prosecution in its tracks when it found that the injured person was not a “worker” to whom a s 19(1) duty under the Work Health and Safety Act 2011 (NSW) (WHS Act) was owed by the defendant.
Key takeaways
- A person conducting a business or undertaking (PCBU) owes a duty under s 19(1) of the WHS Act only to “workers” who are carrying out work for the PCBU while at work in its business or undertaking. “Other persons” such as visitors or contractors not working for the PCBU are protected under s 19(2) of the WHS Act.
- The mere ability of a PCBU to influence or direct a person’s work activity is not sufficient to make them a “worker” to whom a s 19 duty is owed, even if the PCBU has a direct contractual relationship with their employer.
- PCBUs should consider clearly documenting who is engaged or caused to be engaged by them and whose activities they influence or direct.
Background
Tattam Express Pty Ltd (Tattam) operates a transportation and logistics business throughout NSW. Freight Specialists Pty Ltd (Freight Specialists), a transport company based in Wetherill Park, engaged Tattam as a subcontractor to receive freight from Freight Specialists, store it, then deliver it to clients specified by Freight Specialists.
Mr Wayne Skinner (Mr Skinner), an employee of Freight Specialists, made deliveries to Tattam approximately five nights a week. On 12 October 2022 at approximately 2:40am, Mr Skinner arrived at Tattam’s Batemans Bay yard to deliver palletised goods. Following instructions from a Tattam employee, Mr Skinner parked and opened the curtains of his truck to allow unloading to begin. A casual employee of Tattam, Mr Roberts, then began unloading the truck using a forklift. At 3:29am, as Mr Roberts was collecting a load, he reversed the forklift and turned right, and in doing so struck and ran over Mr Skinner (Incident). Mr Skinner sustained a serious right leg injury which required surgery.
On 24 September 2024, SafeWork NSW commenced proceedings against Tattam and alleged that Tattam, a person who had a work, health and safety duty pursuant to s 19(1) of the WHS Act, failed to comply with that duty and thereby exposed workers, in particular Mr Skinner, to a risk of death or serious injury contrary to s 32 of the WHS Act.
On 21 July 2025, Tattam filed a Notice of Motion seeking an order for the proceedings to be dismissed (and also sought a costs order), on the basis that it did not owe a duty to Mr Skinner under s 19(1) of the WHS Act. Tattam argued that Mr Skinner was not a “worker” within the meaning of s 7(1) of the WHS Act and given the prosecution was brought under s 19(1), Tattam submitted that the prosecution could not succeed.
Consideration
Justice Paingakulam identified two central issues of contention between the parties:
- whether ss 7 and 19(1) of the WHS Act, when read together, require a “worker” as defined under s 7 of the WHS Act to be carrying out work for the PCBU in order for a duty under s 19(1) to arise; and
- whether Mr Skinner was a “worker” to whom Tattam owed a duty under s 19(1) of the WHS Act or he was merely an “other person” to whom a duty was owed under s 19(2) of the WHS Act.
The interrelationship between ss 7 and 19(1) of the WHS Act
In relation to the first issue, Justice Paingakulam confirmed that s 19(1) of the WHS Act, when read together with s 7 of the WHS Act (which defines a “worker” as a person who carries out work in any capacity for a PCBU, including but not limited to any of the capacities listed in the provision), imposes a positive duty on a PCBU towards two distinct groups of people:
- Under s 19(1)(a) of the WHS Act, the first group 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 The term “engaged” is broader than “employed”, and the term “caused to be engaged” is broader still, such that this group would include an employee of the PCBU as well as an employee of a contractor, sub-contractor and even a “sub-sub-subcontractor” of the PCBU.
- Under s 19(1)(b) of the WHS Act, the second group consists of persons whose activities in carrying out work in any capacity for a PCBU, while at work in its business or undertaking, are influenced or directed by that This group includes work experience students, employees of a labour hire company engaged to work in the PCBU’s business or undertaking, or volunteers of the PCBU.
Whether Mr Skinner was a “worker” to whom the defendant owed a duty under s 19(1) of the WHS Act
In relation to the second issue, Justice Paingakulam rejected the Prosecutor’s submission that Mr Skinner was engaged or caused to be engaged by Tattam and was therefore a worker in its business. This was on the basis that Freight Specialists was not a contractor of Tattam – it was actually Freight Specialists that engaged Tattam. Therefore, Mr Skinner was not working for Tattam at the time of the incident, given that Tattam was undertaking work at the direction and control of Freight Specialists.
The fact that Freight Specialists frequently required Mr Skinner to attend Tattam’s yard and facilitate the unloading process did not mean that Tattam had engaged him, nor that Tattam had engaged Freight Specialists. Accordingly, the Court found 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.
In relation to s 19(1)(b), the Prosecutor asserted that Tattam had the “capacity to direct Mr Skinner not to be involved in its work activity”, but in failing to do so, Tattam “permitted Mr Skinner to be involved in its work activity and therefore its business”. Tattam in response submitted that the effect of the Prosecutor’s argument would mean that a person who is an “other person” could, by their conduct, transform themselves to be a worker to whom a s 19(1) duty is owed.
Justice Paingakulam considered the small number of tasks undertaken by Mr Skinner at Tattam’s yard (such as moving a forklift out of the way to enable him to unload the freight from his truck) did not mean that he was working for Tattam in its business at the time of the incident. Rather, these tasks were merely incidental to his role as a Freight Specialists employee. Accordingly, Justice Paingakulam rejected the Prosecutor’s submission that Tattam owed him a duty under s 19(1)(b) of the WHS Act.
Decision
The Court ultimately found that Mr Skinner was not a “worker” of Tattam, and therefore he was not a person to whom Tattam owed a duty under s 19(1) of the WHS Act.
The matter has been stood over to 8 September 2025 at 10:00am for final orders on request by the Prosecutor.
For more information, please contact Michael Tooma.
