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District Court 17 March 2025

SafeWork NSW v Pendle Ham and Bacon Pty Ltd

[2025] NSWDC 63

Public order & justice offences
CRIME PROSECUTION WORK HEALTH AND SAFETY RISK OF DEATH OR SERIOUS INJURY INJURY TO WORKER EVIDENCE ADMISSIONS

Citation: SafeWork NSW v Pendle Ham and Bacon Pty Ltd [2025] NSWDC 63
Court: District Court of New South Wales
Date: 17 March 2025
Judge(s): Scotting DCJ

Background

This prosecution arose from a serious workplace incident on 22 May 2021. Three workers were instructed to clean solar panels on the roof of the Pendle Hill Meat Market, a commercial premises at Pendle Hill in western Sydney. At approximately 1:30pm, one of the workers fell through a frosted Perspex skylight installed in the roof, dropping approximately eight metres to the concrete floor below and suffering serious injuries. At the time of the incident, there were no protective covers over the skylights and no edge protection at the roof perimeter.

The business was operated through a limited partnership registered under the Partnership Act 1892 (NSW). The partnership comprised the General Partner (Pendle Ham & Bacon Pty Ltd) and the Limited Partner (Pendle Bacon & Ham Curers Pty Ltd). The three workers, along with a fourth individual, Michael Zammit, were employed by a related labour hire company (PHBC LH Pty Ltd) and assigned to work for the General Partner. Michael Zammit — son of one director and brother of another — was employed as a manager and had in early May 2021 instructed another worker to undertake the solar panel cleaning task.

SafeWork NSW brought Category 1 charges (requiring proof of recklessness or gross negligence) and alternative Category 2 charges (strict liability for duty breach) against multiple defendants. The General Partner and the Labour Hire Company each pleaded guilty to the Category 2 charges but contested the more serious Category 1 charges. The Limited Partner pleaded not guilty to all charges, arguing it owed no duty at all. Michael Zammit pleaded not guilty to a Category 2 charge relating to his worker duties under section 28(b) of the Work Health and Safety Act 2011 (the Act).

The judgment addressed a number of distinct and significant legal questions:

  • Admissibility and reliability of revised answers: Could the corporate defendants rely on revised answers they had provided to compulsory notices issued by SafeWork NSW under section 155 of the Act, and what was the evidentiary status of those original and revised answers?

  • Category 1 fault elements: Did the evidence establish that the corporate defendants acted with gross negligence or were reckless as to the risk of death or serious injury, as required for Category 1 offences under section 31?

  • Limited Partner's liability as a PCBU: Was the Limited Partner a "person conducting a business or undertaking" (PCBU) within the meaning of the Act? This required consideration of whether a limited partner in a registered limited partnership could be separately liable, particularly given the statutory restriction on limited partners taking part in the management of the partnership business.

  • Limited Partner's duties: Even if the Limited Partner was a PCBU, did it engage, influence, or direct the workers (giving rise to a section 19(1) duty), or have management or control of the workplace (giving rise to a section 20 duty)?

  • Worker duty — "while at work" requirement: Was Michael Zammit acting "while at work" at the time he gave the instruction to clean the solar panels, given that the instruction was given some weeks before the incident?

  • Scope of worker duty under section 28(b): Were the steps that the prosecution alleged Michael Zammit should have taken — including prohibiting the work and ensuring protective measures were in place — within the scope of a worker's duty of reasonable care, or did they more properly fall within the duties of a PCBU?

  • Causation: Was any breach of duty by Michael Zammit a substantial or significant cause of the workers' exposure to risk?

Decision

Note: The judgment text provided is truncated, and accordingly this summary addresses the issues as framed by the court rather than reporting final conclusions on all matters, since the full reasoning and orders are not available in the excerpt.

Revised section 155 answers: The court was required to consider the evidentiary reliability and admissibility of answers provided by the corporate defendants to compulsory information-gathering notices issued by SafeWork under section 155 of the Act. The defendants had provided initial answers and then sought to rely on revised responses. The judgment evidently involved consideration of the rules governing admissions in criminal proceedings, including the attribution of statements made by agents and employees.

Category 1 offences — recklessness and gross negligence: The General Partner and Labour Hire Company conceded they had breached their respective duties and that their conduct exposed workers to a risk of death or serious injury without reasonable excuse. The contested issue for the Category 1 charges was whether the prosecution could prove the additional mental element: either gross negligence (a significant departure from the standard of care a reasonable person would exercise) or recklessness (conscious awareness of a substantial risk that was unjustifiably taken). The reasonably practicable measures that were concededly absent — permanent skylight covers, permanent edge protection, and prohibition of roof work without such protections — were fundamental fall-from-height controls, and the court was required to assess whether the failure to implement them met the elevated threshold for Category 1 liability.

Limited Partner's status as a PCBU: This was a novel and legally significant issue. The court engaged in a detailed analysis of the nature of limited partnerships under the Partnership Act 1892, the statutory definition of PCBU in the WHS Act, and the interaction between the two regimes. A key tension arose from section 66 of the Partnership Act, which provides that a limited partner who takes part in the management of the partnership business loses the protection of limited liability. The court examined whether the Limited Partner, as a corporate entity that was a constituent of the partnership, could itself be characterised as conducting a business or undertaking separate from the partnership. The judgment considered English and Australian authorities on partnership law, including the fundamental principle from Cox v Hickman and subsequent cases. The court also considered the factual question of whether, given the common directorship of all corporate entities, the Limited Partner had in practice taken part in the management of the business.

Michael Zammit's worker liability: The court examined whether the instruction given by Michael Zammit to another worker in early May 2021 — weeks before the incident — constituted conduct "while at work" for the purposes of section 28(b). The court also grappled with the scope of a worker's duty under that provision, which requires workers to "take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons." A central question was whether the specific steps the prosecution identified (prohibiting workers from the roof, ensuring protective covers and edge protection) were measures that fell within a worker's capacity and responsibility, or whether they were properly characterised as PCBU-level obligations. The court also needed to determine causation — whether Michael's instruction was a substantial cause of the exposure to risk, given that other failures by the corporate PCBUs were conceded.

Orders Made

The full text of orders was not available in the truncated judgment. Based on the available text:

  • The General Partner pleaded guilty to Category 2 offences under sections 19(1) and 20 (read with section 32) of the Act.
  • The Labour Hire Company pleaded guilty to a Category 2 offence under section 19(1) (read with section 32) of the Act.
  • The court was required to determine the Category 1 charges against the General Partner, the Limited Partner, and the Labour Hire Company, and all charges against the Limited Partner and Michael Zammit — outcomes on these matters are not available from the truncated text.

Readers should consult the full judgment for the court's ultimate findings and any sentencing outcomes.

Key Takeaways

  • Limited partnership structures do not automatically insulate a limited partner from WHS liability. The District Court subjected the Limited Partner's role to close scrutiny, examining whether it was independently a PCBU. The use of a limited partnership does not necessarily shield constituent entities from prosecution under the WHS Act, particularly where common directors are involved.

  • To sustain a Category 1 conviction, the prosecution must independently prove gross negligence or recklessness, even where duty breach and risk exposure are conceded. The Court's analysis confirmed that the distinction between Category 1 and Category 2 offences carries significant consequences for maximum penalties and reputational impact.

  • Under section 28(b) of the WHS Act, a worker's duty has defined limits. The District Court considered whether safety measures properly the responsibility of a PCBU (such as installing permanent infrastructure controls) can be attributed to an individual worker. The decision clarified the boundaries of worker obligations by distinguishing between systemic safety failures attributable to a PCBU and the reasonable steps expected of an individual worker.

  • Revised answers to compulsory information notices under section 155 raised questions of evidentiary reliability and admissibility. The Court was required to consider the rules governing admissions in criminal proceedings, including the attribution of statements made by agents and employees of the corporate defendants.