District Court New South Wales Medium Neutral Citation: SafeWork NSW v Rawson Homes Pty Ltd [2016] NSWDC 237 Hearing dates: 05/09/2016; 06/09/2016; 15/09/2016 Date of orders: 05 October 2016 Decision date: 05 October 2016 Jurisdiction: Criminal Before: KEARNS DCJ Decision: The Court orders that: the Summons issued on 2 September 2015 be dismissed; the Prosecutor is to pay the defendant's costs as agreed or assessed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of person conducting business or undertaking (PCBU) to employees of a contractor to the PCBU – whether the duty owed under s 19(1) or s 19(2) of the Work Health and Safety Act 2011 – meaning of "other workers" in s 19(2) Legislation Cited: Work Health and Safety Act 2011 Criminal Appeal Act 1912 Cases Cited: Essential Energy (ACN 37 428 185 226) v WorkCover Authority of NSW [2012] NSWIRComm 83 Texts Cited: Work Health and Safety Bill 2011 Second Reading speech(Hansard, NSW Legislative Council, Hon Greg Pearce, 26 May 2011) Safe Work Australia "Explanatory Memorandum – Model Work Health and Safety Bill" (7 December 2010) Category: Principal judgment Parties: SafeWork New South Wales (formerly WorkCover Authority of New South Wales) (prosecutor) Rawson Homes Pty Ltd (defendant) Representation: Counsel: Mr M Moir, instructed by SafeWork NSW, appeared for the prosecutor Ms P McDonald SC, instructed by Sparke Helmore Lawyers, appeared for the defendant File Number(s): 2015/255768 judgment Background, the charge and plea 1. On 30 October 2013, Mr Terrence Flowers was seriously injured and Messrs Dukes, McCartney, Watson, Naimo and Wells (the Regal workers) escaped injury when an extended boom of a concrete pump/placing boom truck (the concrete pump) collapsed during a concrete pour for a residential construction in Orange. 2. The defendant (Rawson) was the principal contractor for the construction of the house at Lot 320 Mariposa Street, Orange. It contracted with Regal Contracting (NSW) Pty Ltd for Regal to undertake excavation work and pour a concrete slab for the foundations. Regal contracted with Dagmar Pty Ltd for Dagmar to provide the concrete pump and operator to pour concrete from the street to the site. 3. Regal undertook the excavation work and prepared the form work for the concrete pour before 30 October 2013. 4. Dagmar undertook the concrete pour on 30 October 2013. 5. Rawson is charged that contrary to s 32 of the Work Health and Safety Act 2011, it breached a duty imposed on it under s 19(2) to ensure, as far as reasonably practicable, that the health and safety of persons was not put at risk from work carried out as part of the conduct of its business or undertaking. 6. Rawson has pleaded not guilty. The legislation 1. Section 3 provides: (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable. 1. Section 7 relevantly provides: (1) A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking, or (e) an outworker, or (f) an apprentice or trainee, or (g) a student gaining work experience, or (h) a volunteer, or (i) a person of a prescribed class. 1. Section 19 relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. 1. For convenience, I shall not refer to the clause "so far as is reasonably practicable" hereafter. Also for convenience, at times I shall refer to the person conducting a business or undertaking as the "PCBU". 2. Section 32 relevantly provides: A person commits a Category 2 offence if: 1. the person has a health and safety duty, and 2. the person fails to comply with that duty, and 3. the failure exposes an individual to a risk of death or serious injury or illness. Some procedural matters 1. These proceedings may, broadly speaking, be categorised into three parts: 1. the first part is the authority to bring the proceedings (the authority issue); 2. the second part is the correct interpretation of s 19(2) (the s 19(2) issue); 3. the third part is the balance of the proceedings (the remaining issues). 1. The remaining issues cover issues such as whether: * Rawson exposed the Regal workers to risk to their health and safety; * there were measures reasonably practicable for Rawson to take to address any such risk; * any such measure would have eliminated or minimised the risk. 1. Practically the whole of the evidentiary material and the written submissions were directed to the remaining issues. 2. In the events that happened, I heard argument on the s 19(2) issue. Following that, I expressed and provided in draft form my views on the s 19(2) issue. Following that, the authority issue was no longer pressed. 3. The matter was adjourned to allow SafeWork to consider whether it would, under s 5AE of the Criminal Appeal Act 1912, request a question of law be submitted to the Court of Criminal Appeal for determination on the s 19(2) issue. Today, I was informed that SafeWork does not wish to pursue that course. 4. As I remain of the same view in relation to the s 19(2) issue, orders disposing of the matter could be made. Accordingly, that was done with a note that the draft I provided earlier to the parties would be amended to reflect these developments. These reasons, as so amended, are my reasons for my determination in this matter. The s 19(2) issue 1. Rawson submitted that it did not owe a health and safety duty under s 19(2). This involves, in the first instance, a question as to the correct interpretation of s 19(2). 2. The contest is whether "other persons" is a reference to workers in s 19(1) or to the PCBU. Rawson's submission is that the words "other persons" in section 19(2) are a reference to persons other to those described in (a) and (b) of s 19(1). The Prosecutor's submission is that the words "other persons" are a reference to persons other than the PCBU. I think Rawson's submission is correct. 3. Rawson's submission is that on the evidence the Regal workers come under s 19(1). Because they come under s 19(1), they do not come under s 19(2) as they are not "other persons" within the meaning of that provision. 4. In support of the Prosecutor's submissions, it was argued that ss (1) and (2) are not mutually exclusive. This is said to be supported by different duties being imposed by the sub-sections. Sub-section (1) imposes a positive obligation to ensure health and safety. Sub-section (2) imposes a negative obligation to ensure health and safety are not put at risk. It is difficult to envisage what difference there is in practical terms between these expressions of the duty and that was not explored in argument. 5. A pointer said to be in favour of SafeWork's submission is the use of the term "other persons" in ss (2). It must be a reference to some identity earlier mentioned. The only earlier references in the section to such an identity are to "person" in both sub-sections and to "workers" in ss (1). The fact that both these terms have been used and at the critical point for interpretation, the Legislature has used the word "persons" is said to provide support for the argument that it is a reference to "person" where earlier used and not to "workers". 6. I do not accept that this is so. One thing is clear. If the Legislature had a choice of using "other persons" or "other workers" in ss (2), it could not have used "other workers". To have done so would have confined s 19 to operate in favour of workers only. The Legislature, accordingly, had to use a term other than "other workers". A simpler way for the Legislature to achieve what SafeWork says is the correct interpretation would have been to use the expression "all persons". 7. The result of SafeWork's submission is that ss (2) is to be read as imposing on the PCBU a duty to all persons other than the PCBU. This would be odd in circumstances where ss (1) has already imposed a duty in relation to "workers". The only way this would make sense would be if ss (2) was imposing some additional duty on the PCBU in relation to workers that was not imposed on it by ss (1). It is difficult to see how that could be. On the face of it, the duty to workers under ss (1) is wider than the duty under ss (2). Assuming all other elements of the sub-section are satisfied, ss (1) imposes the duty while the workers are "at work", whereas ss (2) imposes the duty to avoid risk "from work carried out". In practical terms, there may be no difference, but confining oneself to the wording suggests a broader reach for ss (1). This suggests that ss (1) is a provision for "workers" and ss (2) is a provision for others. 8. If, contrary to the view that ss (1) is wider in its reach than ss (2), the true position is that their reach is similar, then Safe Work's submission as to the meaning of "other persons" would leave ss (1) with no work to do. 9. Argument centred on the definition of "worker" in s 7, but I do not see that as advancing SafeWork's submission. Emphasis was placed on the word "for" in the phrase "for a [PCBU]". That cannot mean "for" in the sense of the person being an employee of the PCBU because, apart from (a) and (f), the list in that section comprises persons who are not employees. The word is used in a broader sense and encompasses such things as whether the worker was doing work that advanced the business or undertaking of the PCBU. 10. I was directed to the Second Reading speech of the Hon. Greg Pearce and the Explanatory Memorandum. To the extent that they are of any utility, I think they aid Rawson's submission. Paragraphs 76 to 79 of the Explanatory Memorandum deal essentially with s 19(1). 11. Paragraph 78 provides: Duties of care are imposed on duty holders because they influence one or more of the elements in the performance of work and in doing so may affect the health and safety of themselves or others. Duties of care require duty holders – in the capacity of their role and by their conduct – to ensure, so far as is reasonably practicable, the health and safety of any workers that they have the capacity to influence or direct in carrying out work. 1. Paragraph 80 is preceded by a heading "Duty Extends to 'Others'". It provides: Subclause 19(2) extends whom the primary duty of care is owed to beyond the PCBU's workers to cover all other persons affected by the carrying out of work. It requires PCBUs to ensure, so far as is reasonably practicable, that the health and safety of all persons is not put at risk from work carried out as part of the business or undertaking. The first sentence certainly suggests that s 19(2) applies to persons other than the PCBU's workers, not to persons other than the PCBU. The second sentence might suggest ss (2) extends to all persons, even including the PCBU. That depends on whether "It" at the beginning of the sentence refers to s 19(2) or to s 19 as a whole. 1. Paragraph 81 of the Explanatory Memorandum states: This wording is different to that used in subclause 19(1). Unlike the duty owed to workers in subclause 19(1), the duty owed to others is not expressed as a positive duty, as it only requires that persons other than workers 'not [be] put at risk'. 1. This paragraph suggests two things: 1. S19(2) applies to persons other than workers; 2. The duty owed to workers under ss (1) is a positive duty, whereas the duty owed to others is not. 1. I have referred to this material in this way to deal with SafeWork's submission. One of the dangers of doing so is that one ends up parsing and analysing extraneous materials instead of the Statute. I do not find this material of assistance and certainly I do not think it assists SafeWork's submission. 2. I do not accept SafeWork's submission that Rawson's submission is not consistent with the objects of the Act. The object of the Act is set out in s 3. There is nothing about Rawson's submission that cuts across any part of s 3. Indeed support can be found for Rawson's submission in s 3(1)(a) and s 3(2). They both make the distinction between "workers" and "other persons". This is the very distinction that is made in s 19 in ss (1) and (2). The words "other persons" in s 19(2) ought to have the same meaning they do in ss 3(1)(a) and 3(2) and it is clear here they mean persons other than workers. 3. Rawson's submission allows for workers and others on workplace premises to be protected by duties owed to them under s 19. Its point is simply that it has been charged under a provision that is inappropriate to the circumstances. 4. SafeWork relied on Essential Energy (ACN 37 428 185 226) v WorkCover Authority of NSW [2012] NSWIRComm 83. I do not find that decision helpful. It is not apparent that the neat point raised in this case was argued in that case. It appears not to have been and her Honour did not express any definitive considered view. 5. The result of all this, in my view, is that "other persons" when used in s 19(2) is a reference to persons other than "workers" as mentioned in s 19(1). 6. The question then is whether the Regal workers were workers within the meaning of s 19(1). On the evidence in these proceedings, they were. That conclusion is readily drawn from the agreed facts (Exhibit PX 1). 7. Rawson's business consists of the construction of residential housing. It has been in business over 35 years. In the period between January 2011 and October 2013, it constructed approximately 1,100 homes. As at 30 October 2013, it employed 116 people. 8. Rawson was the principal contractor for the construction of the house at Lot 320 Mariposa Street, Orange. It had contracted with a Mr and Mrs Hetherington to build the house. It contracted with Regal for Regal to undertake excavation work and pour a concrete slab for the foundations. Regal contracted with Dagmar for Dagmar to provide the concrete pump and operator to pour concrete from the street to the site. 9. Messrs Dukes, McCartney, Watson, Naimo and Wells were all concrete or other labourers employed by Regal. Mr Flowers was a director of Regal and worked as a site supervisor/foreman. 10. Regal performed excavation work and prepared the form work for the concrete pour prior to 30 October 2013. The concrete pour scheduled for that date was for the purpose of creating the slab and footings for the house. The concrete pour was undertaken on that date. 11. There was also evidence outside the agreed facts relevant to this. Mr Middleton, as Rawson's site supervisor, had functions that included "Stopping, rejecting or quarantining unsafe work methods, work areas, materials, plant and equipment" (Exhibit PX 2, Vol 2, tab 19, p7 [3.6])). 12. Clearly Mr Middleton as site supervisor of the principal contractor could, in appropriate circumstances, influence and direct the activities of workers generally on site. He did on occasions visit the site during construction. 13. All the Regal workers were within s 7(1)(c), that is they were all employees of a contractor to Rawson. On 30 October 2013, they were working on the concrete pour for the residential construction. There cannot be any doubt that that was work for Rawson within the meaning of s 7 and, accordingly, they were workers within that definition. These workers also fell within s 19(1)(b) as workers whose activities in carrying out the work were influenced or directed by the PCBU while at work in the business or undertaking of the PCBU. 14. For these reasons, I am of the view that s 19(2) on its proper construction does not apply to this case and, accordingly, the Summons in this case should be dismissed. orders 1. The Court orders that: 1. the Summons issued on 2 September 2015 be dismissed; 2. the Prosecutor is to pay the defendant's costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2016