Citation: SafeWork NSW v Rawson Homes Pty Ltd [2016] NSWDC 237
Court: District Court of New South Wales
Date: 5 October 2016
Judge: Kearns DCJ
Background
Rawson Homes Pty Ltd was the principal contractor for a residential construction in Orange, NSW. It engaged Regal Contracting (NSW) Pty Ltd to carry out excavation work and pour a concrete slab. Regal in turn engaged Dagmar Pty Ltd to supply a concrete pump and operator. On 30 October 2013, the boom of the concrete pump collapsed during the pour, seriously injuring one worker and placing five Regal employees in danger.
SafeWork NSW prosecuted Rawson under section 32 of the Work Health and Safety Act 2011 (WHS Act) for an alleged breach of the duty in section 19(2): the obligation on a person conducting a business or undertaking (PCBU) to ensure that the health and safety of "other persons" is not put at risk from work carried out as part of that business or undertaking.
Rawson pleaded not guilty and contested whether section 19(2) applied to it at all in these circumstances. The central dispute was a question of statutory interpretation: who are the "other persons" to whom the duty in section 19(2) is owed?
Legal Issues
- Whether the duty Rawson owed to the Regal workers arose under section 19(1) or section 19(2) of the WHS Act.
- Whether the phrase "other persons" in section 19(2) means persons other than those described as workers in section 19(1), or persons other than the PCBU itself.
- Whether sections 19(1) and 19(2) operate on a mutually exclusive basis, such that a person who falls within section 19(1) cannot simultaneously fall within section 19(2).
Decision
The court found that the Regal workers were "workers" within the meaning of section 7 of the WHS Act. They were employees of a contractor to Rawson (section 7(1)(c)), and their activities were capable of being influenced or directed by Rawson's site supervisor. Accordingly, they fell squarely within section 19(1)(b).
The core interpretive question was what "other persons" means in section 19(2). SafeWork argued it means persons other than the PCBU, making sections 19(1) and 19(2) potentially overlapping categories. Rawson argued it means persons other than those already covered by section 19(1), making the two subsections mutually exclusive.
Kearns DCJ accepted Rawson's submission. The phrase "other persons" must refer back to an identity already mentioned in the section. The only antecedent candidates are the PCBU and the workers described in section 19(1). Reading the provision as a whole, his Honour concluded that "other persons" in section 19(2) refers to persons other than those workers covered by section 19(1). Section 19(2) accordingly applies to persons such as members of the public or visitors, not to workers already captured by section 19(1).
Because the Regal workers fell within section 19(1), they were not "other persons" within section 19(2). The charge, which was framed solely as a section 19(2) breach, therefore could not succeed. SafeWork declined the opportunity to refer the question of law to the Court of Criminal Appeal under section 5AE of the Criminal Appeal Act 1912, and the summons was dismissed.
Orders Made
- The summons issued on 2 September 2015 was dismissed.
- The prosecutor (SafeWork NSW) was ordered to pay the defendant's costs, as agreed or assessed.
Key Takeaways
- The District Court held that sections 19(1) and 19(2) of the WHS Act operate as mutually exclusive categories: a person who qualifies as a "worker" under section 19(1) is not simultaneously an "other person" for the purposes of section 19(2).
- Under section 19(2), the duty to ensure health and safety is not put at risk applies to persons outside the categories already captured by section 19(1), such as members of the public, rather than to workers of contractors or subcontractors who already fall within section 19(1).
- Employees of a contractor engaged by a principal contractor can fall within section 19(1)(b) where the principal contractor's site supervisor had capacity to influence or direct their work activities on site.
- A charge framed solely as a section 19(2) breach will fail where the persons exposed to risk are properly characterised as section 19(1) workers, regardless of whether the factual elements of a breach are otherwise established.
- SafeWork's decision not to refer the section 19(2) interpretation question to the Court of Criminal Appeal under section 5AE of the Criminal Appeal Act 1912 means this District Court ruling was not tested at appellate level, and its status as binding authority is correspondingly limited.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), sections 3, 7, 19, and 32
- Criminal Appeal Act 1912 (NSW), section 5AE
Cases:
- Essential Energy (ACN 37 428 185 226) v WorkCover Authority of NSW [2012] NSWIRComm 83