Citation: SafeWork NSW v BI Australia Pty Ltd [2025] NSWDC 364
Court: District Court of New South Wales
Date: 17 September 2025
Judge: Strathdee DCJ
Background
BI Australia Pty Ltd was a labour hire company that employed casual workers and placed them with host employers. At all relevant times, it had placed Mr Mohammad Bilal Chaudhary, a recently licensed forklift operator, at the premises of Galvatech Pty Ltd in Padstow, a galvanising operation. Mr Chaudhary had no prior forklift operating experience before obtaining his licence in December 2021 and had commenced working with BI only weeks before the incident.
On 11 February 2022, Mr Chaudhary was walking through a car park at the Galvatech site that was also being used for storage. He approached another BI worker, Mr Matthew Manson, who was reversing a forklift. Mr Manson was not looking in the direction he was reversing, and Mr Chaudhary mistakenly believed he had been seen. The forklift struck Mr Chaudhary, ran over his leg, and trapped him underneath. He suffered a broken leg, required surgery, orthotics, and extensive rehabilitation.
SafeWork NSW prosecuted BI for a Category 2 offence under the Work Health and Safety Act 2011 (NSW), alleging that BI, as a person conducting a business or undertaking (PCBU), failed to discharge its duty to ensure the health and safety of its workers so far as reasonably practicable, and that this failure exposed Mr Chaudhary to a risk of death or serious injury. BI never appeared in the proceedings.
Legal Issues
- Whether BI was conducting a business or undertaking within the meaning of the WHS Act.
- Whether BI owed a health and safety duty to its placed workers under s 19(1) of the WHS Act.
- Whether BI failed to comply with that duty.
- Whether the failure exposed an individual to a risk of death or serious injury, satisfying the elements of a Category 2 offence under s 32 of the WHS Act.
- What penalty was appropriate, including consideration of aggravating and mitigating factors.
Decision
The court proceeded on an ex parte basis, meaning BI did not appear and the matter was determined on the prosecution's tendered materials alone. Strathdee DCJ was satisfied beyond reasonable doubt that all four elements of the offence were established. BI was conducting a business or undertaking, employed Mr Chaudhary and Mr Manson, and its activities in placing and directing workers engaged its duty as a PCBU under s 19(1).
The court found that BI's failures were multiple and systemic. BI had not inquired of Galvatech about the nature of work or the risks at the site before placing workers there. It had not undertaken a comprehensive risk assessment addressing forklift movement, had not consulted with Galvatech about a site-specific traffic management plan, had not assessed workers' competency to operate forklifts, and had not provided or requested training on working safely around mobile plant. Critically, Mr Manson did not hold the required high risk work licence to operate a forklift, and the forklift's warning lights were not functioning at the time of the incident. These failures collectively exposed Mr Chaudhary to a real and significant risk of death or serious injury.
On penalty, the court treated the offence as falling in the mid-range of objective seriousness. Aggravating factors included that the harm actually suffered by Mr Chaudhary was more serious than might ordinarily be expected for such an incident. The only mitigating factor available to BI was its absence of prior convictions under work health and safety law, which entitled it to some leniency. No other mitigating matters were before the court, given BI's non-appearance. The absence of any guilty plea, cooperation, or demonstrated contrition weighed against a reduction in penalty.
Orders Made
- BI Australia Pty Ltd found guilty and convicted.
- BI Australia Pty Ltd ordered to pay a fine of $400,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- BI Australia Pty Ltd ordered to pay the prosecutor's costs, not to exceed $40,000.
Key Takeaways
- A labour hire company's duty as a PCBU under s 19(1) of the WHS Act extends to workers it places with host employers, not merely workers it supervises on its own premises.
- Failing to inquire about site-specific risks, failing to conduct a comprehensive risk assessment, and failing to consult with a host employer about traffic management and licensing requirements can each independently contribute to a finding of a Category 2 breach.
- The District Court confirmed that placing an unlicensed forklift operator on a site, without checking licensing requirements or ensuring adequate systems were in place, was a significant feature of the offending.
- Where a defendant fails to appear in proceedings, no mitigating factors beyond the absence of prior convictions are available, and no credit can be given for a guilty plea, cooperation, or contrition.
- Under s 122(2) of the Fines Act 1996 (NSW), the court may direct that a proportion of the fine be paid to the prosecutor, and this order was made here directing 50% of the $400,000 fine to SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 14, 16, 17, 18, 19, 31, 32, 46
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW), s 122
- Occupational Health and Safety Act 2000 (NSW), s 8(2)
Cases
- Baida Poultry Pty Ltd v R (2012) 246 CLR 92
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Director of Public Prosecutions v Vibro-Pile (Aust) [2016] VSCA 55
- Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96