2 October 2025
In a recent significant ruling, the Industrial Court of New South Wales in SafeWork NSW v Tattam Express Pty Ltd [2025] NSWIC 7 (the Tattam Decision) clarified the scope of duties owed by persons conducting a business or undertaking (PCBUs) to workers under section 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act).
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Despite the Tattam Decision being a NSW case, it has significant implications on Queensland construction businesses that operate as principal contractors.
The Tattam Decision challenges the previously expansive interpretation of section 19(1) often employed by the prosecution when attributing liability, and holds considerable significance for PCBUs considering contesting statutory notices or subject to charges over incidents involving contractors performing work outside the scope of the PCBU’s principal operations.
Who is a "worker"?
SafeWork NSW prosecuted Tattam Express Pty Ltd (Tattam), alleging the company breached its primary duty of care under section 19(1) of the Act by exposing a truck driver, Mr Wayne Skinner, to a risk of serious injury. The incident occurred when Mr Skinner, employed by Freight Specialists (a separate company), was injured by a forklift while delivering goods at Tattam’s worksite.
SafeWork NSW contended that Mr Skinner was a “worker” of Tattam because he was engaged and/or influenced by Tattam in undertaking his work activities at Tattam’s worksite, which imposed a primary duty of care on Tattam.
The Court outlined that for a person to be considered a “worker” under section 19(1) of the Act, they must:
- be engaged, or caused to be engaged by the PCBU, and carrying out work for the PCBU (per section 19(1)(a)); or
- be carrying out work in any capacity for the PCBU, and is influenced or directed by that PCBU (per section 19(1)(b)).
Noting the above, the Court dismissed the prosecution against Tattam, finding that Tattam did not owe a primary duty of care to Mr Skinner, as Mr Skinner was not engaged or caused to be engaged by Tattam, nor was his work sufficiently influenced or directed by Tattam to constitute a “worker” per section 19(1) of the Act. Instead, he was considered an “other person” under section 19(2) of the Act, which provides a different (lesser) duty of care.
What this means for you?
In practice, the Tattam Decision found that simply being present at the worksite, or being subject to some influence or direction by the PCBU is insufficient to make someone a “worker” for the purposes of the Act. The person must, in some capacity, be carrying out work for the PCBU.
For businesses, the Tattam Decision highlights the importance of effective contractor management, and structuring commercial arrangements with subcontractors in a way that appropriately protects the business. Effective contractor management should focus on setting clear expectations, monitoring compliance and safety standards in a considered way, and requiring subcontractors to manage their own workers, rather than exercising direct control over a subcontractor’s operational decisions. You are entitled to rely on the expertise of your contractors. Overstepping the line in this regard may unnecessarily create liability for your business.
If you need advice on structuring your contractor arrangements, please reach out to Mason Fettell, and the team at DWF (Australia).
Please find a copy of the Tattam decision available here.
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