SafeWork NSW v Pendle Ham and Bacon Pty Ltd

Medium Neutral Citation: SafeWork NSW v Pendle Ham and Bacon Pty Ltd [2025] NSWDC 63

Hearing dates: 25, 26, 27 and 28 March 2024, 5, 9, 16 and 17 September 2024; 3 and 20 October 2024, 19 December 2024

Date of orders: 17 March 2025

Decision date: 17 March 2025

Jurisdiction: Criminal

Before: Scotting DCJ

Decision: (1) The prosecutor has not proved beyond reasonable doubt the elements of the Category 1 offences pleaded against the General Partner, the Limited Partner and the Labour Hire Company.
(2) The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offences pleaded against the Limited Partner.
(3) The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offence pleaded against Michael Zammit.
(4) In relation to the pleas of guilty to the Category 2 offences entered by the General Partner and the Labour Hire Company on the basis of the failure to take the steps set out in [12]-[13], I am satisfied beyond reasonable doubt that the General Partner and the Labour Hire Company also failed to conduct an adequate risk assessment for the reasons set out in [476]-[485] and they should be sentenced on that additional particular.
(5) I will list the matter on 31 March 2025 to fix a date for sentence for the General Partner and the Labour Hire Company for the Category 2 offences and to make final orders in relation to the other charges.

Catchwords: CRIME – prosecution – work health and safety – definition of person conducting a business or undertaking (PCBU) – risk of death or serious injury – injury to worker
EVIDENCE – admissions – criminal proceedings - agents and employees – reliability
WORK HEALTH AND SAFETY – fall from height – likelihood of risk occurring – risk of workers falling from a height - category 1 offences – recklessness – gross negligence – category 2 offences – strict liability – breach of s 19(1) and s 20 duty – duty owed by a worker s 28(b) – breach of s 28(b) duty – causation of exposure to risk of death or serious injury
PARTNERSHIPS AND JOINT VENTURES – limited partnership – contract of partnership – liability of limited partner for criminal conduct of general partner – meaning of take part in business of the partnership

Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Consumer Protection Act 1969
Corporations Act 2001 (Cth)
Evidence Act 1995
Income Tax Assessment Act 1997 (Cth)
Interpretation Act 1987
Limited Partnership Act 1907 (UK)
Occupational Health and Safety Act 2000
Partnership Act 1890 (UK)
Partnership Act 1892
Taxation Administration Act 1953 (Cth)
Trade Descriptions Act 1968 (UK)
Work Health and Safety Act 2011

Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Allianz Global Investors GmbH v Barclays Bank PLC [2023] 1 All ER (Comm) 20
Aubrey v R (2017) 260 CLR 305
Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd (2007) FCR 321
Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Boland v Safe is Safe Pty Ltd [2017] SAIRC 17
Bulga Underground Operations v Nash [2016] NSWCCA 37
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Certain Limited Partners in Henderson PFI Secondary Fund II LP (a firm) v Henderson PFI Secondary Fund II LP (a firm) [2013] QB 934
Certain Lloyd’s Underwriters v Cross (2012) 87 ALJR 131
Clode v Barnes [1974] 1 WLR 544
Collins v Poole (1977) 2 TPC 173
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Construction Forestry Maritime Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
Cox v Hickman (1860) 8 HL 268
Davis v Langdon [1911] 11 SR (NSW) 149
Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd as trustee for the Sadie Ville Superannuation Fund [2020] FCAFC 23
Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 140 CLR 434
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
In re Barnard: Martins Bank v Trustee [1932] 1 Ch D 269
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Inversiones Friera SL v Colyzeo Investors II LP [2012] Bus LR 1136
Johnson v Mackinnon (No 2) [2022] NSWCA 22
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Kuhl v Zurich Financial Services Australia Pty Ltd (2011) 243 CLR 361
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Maloney v Commissioner for Railways (1978) 18 ALR 147
Neindorf v Junkovic (2005) 80 ALJR 341
Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR 201
Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v ACR Roofing Pty Ltd (2004) 11 VR 187
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Cunningham [1957] 2 QB 396 R v Horton (1998) 104 A Crim R 306 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 R v Newth [1974] 2 NZLR 760 Re Bolton; Ex Parte Beane (1987) 162 CLR 514 Re Garwood’s Trusts: Garwood v Paynter [1903] 1 Ch D 236 Riley v Director of Public Prosecutions [2017] 1 WLR 505 Royall v The Queen (1991) 172 CLR 378 SafeWork NSW v Astute Earthworks Pty Ltd [2023] NSWDC 131 Safework NSW v Scharfe [2021] NSWDC 260 SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295 Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 Seltsam v McNeill [2006] NSWCA 158 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 State of New South Wales v Fahy (2007) 232 CLR 486 Strother v 3469420 Canada Inc [2007] 2 SCR 177 Tame v New South Wales (2002) 211 CLR 317 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531 The Queen v Welch (1875) 1 QBD 23 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 Vairy v Wyong Shire Council (2005) 223 CLR 426 Ward v Newalls Insulation Co Ltd [1998] 1 WLR 1722 Wentworth Securities Ltd v Jones [1980] AC 74 Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 WorkPac Pty Ltd v Rossato [2021] HCA 23 WorkSafe New Zealand v Waste Management NZ Ltd [2021] NZHC 3444 Wyong Shire Council v Shirt (1980) 146 CLR 40 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

Texts Cited: Banks, Lindley & Banks on Partnership, 21st Ed, Thomson Reuters, 2022
Macquarie Dictionary
Mann, “Limited partnerships: A new Approach” (1992) AMPLA Yearbook 379
NSW Government Code of Practice: How to manage work health and safety risks, August 2019
SafeWork Australia – Safe work on roofs: Information Sheet, January 2016
SafeWork NSW – Code of Practice: Managing the risks of falls at workplaces, August 2019
SafeWork NSW – Falls through skylights and plastic roof sheeting Safety Alert, 14 September 2018
SafeWork NSW – Incident Information Release: More workers falling through roofs in NSW, 4 August 2020
WorkCover NSW – Safe Work on Roofs – Part 1 Commercial and Industrial Buildings, Code of Practice 2009

Category: Principal judgment

Parties: SafeWork NSW (Prosecutor)
Pendle Ham & Bacon Curers Pty Ltd Defendant)
Pendle Ham & Bacon Pty Ltd (Defendant)
PHBC LH Pty Ltd (Defendant)
Michael Zammit (Defendant)

Representation: Counsel:
B Docking (Prosecutor)
I Taylor SC with M Shume (Defendants) (March 2024)
M Shume (Defendants) (September- December 2024)
P Boulten SC (Defendants) (Written Submissions October 2024)
Solicitors:
Department of Customer Service (Prosecutor)
Hall & Wilcox (Defendants)

File Number(s): Pendle Ham & Bacon Curers Pty Ltd - 2023/160812 and 2023/160871
Pendle Ham & Bacon Pty Ltd - 2023/160834 and 2023/160857
PHBC LH Pty Ltd - 2023/160882
Michael Zammit - 2023/160822

Publication restriction: None

Judgment

Introduction

The charges

1. Pendle Ham & Bacon Pty Ltd (the General Partner) has pleaded not guilty to the following Category 1 offences:

(a) that as a person with a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act), it without reasonable excuse engaged in conduct that exposed Vinoth Shanmugalingam, Thavasthasan Ponnuthurai and Sedhurajan Velusamy (the workers) to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act; and (b) that as a person with a health and safety duty under s 20 of the Act, it without reasonable excuse engaged in conduct that exposed the workers to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act.

2. The General Partner has pleaded guilty to the following Category 2 offences, which were pleaded in the alternative to the Category 1 offences:

(a) that as a person with a health and safety duty under s 19(1) of the Act that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act; and (b) that as a person with a health and safety duty under s 20 of the Act that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act.

3. Pendle Bacon & Ham Curers Pty Ltd (the Limited Partner) has pleaded not guilty to the following offences of which the Category 2 offences are pleaded in the alternative to the Category 1 offences:

(a) that as a person with a health and safety duty under s 19(1) of the Act, it without reasonable excuse engaged in conduct that exposed the workers to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act (Category 1); and (b) that as a person with a health and safety duty under s 20 of the Act, it without reasonable excuse engaged in conduct that exposed the workers to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act (Category 1); and (c) that as a person with a health and safety duty under s 19(1) of the Act that it that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act (Category 2) and (d) that as a person with a health and safety duty under s 20 of the Act that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act (Category 2)

4. PHBC LH Pty Ltd (the Labour Hire Company) has pleaded not guilty to a Category 1 offence that as a person with a health and safety duty under s 19(1) of the Act, it without reasonable excuse engaged in conduct that exposed the workers to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act.

5. The Labour Hire Company has pleaded guilty to a Category 2 offence that was pleaded in the alternative to the Category 1 offence, that as a person with a health and safety duty under s 19(1) of the Act that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act.

6. Michael Zammit has pleaded not guilty to a Category 2 offence that as a worker with a health and safety duty under s 28(b) of the Act that he failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury contrary to s 32 of the Act.

Statement of the case

7. On 22 May 2021 the workers were instructed to clean solar panels installed on the roof of the Pendle Hill Meat Market at 142 Bungaree Road, Pendle Hill (the Shop). At about 1.30pm, Mr Shanmugalingam fell through a frosted perspex skylight installed on the roof of the Shop about 8m to the concrete floor and suffered serious injuries.

8. The Shop was part of a business operated by the Pendle Ham & Bacon Curers Partnership (the Partnership). The Partnership was registered as a limited partnership under the Partnership Act 1892 (the Partnership Act) and the subject of a Deed of Limited Partnership dated 16 April 2015 (the Partnership Deed), constituted by Pendle Ham & Bacon Pty Ltd as the General Partner and Pendle Ham & Bacon Curers Pty Ltd as the Limited Partner. The Partnership traded under the name Pendle Ham & Bacon Curers.

9. At all material times, Charles Zammit and Jason Zammit were the directors of the General Partner, the Limited Partner and the Labour Hire Company. Michael Zammit is the son of Charles and the brother of Jason. [1]

10. The workers, Michael and Jayanthan Sithiravel (Jayanthan) were employed by the Labour Hire Company and assigned work for the General Partner. Michael was employed as a manager.

11. In or about early May 2021, Michael instructed Jayanthan to undertake the task of cleaning the solar panels.

12. It was conceded by the General Partner and the Labour Hire Company that each of them, in breach of the s 19(1) duty owed to the workers, failed to take the following reasonably practicable steps:

(a) prohibiting and/or preventing one or more of the workers from working on the roof of the commercial building given that there were no permanent protective covers over the skylights and no permanent edge protection at the roof edge; (b) providing permanent protective covers over the skylights (or requiring them to be provided by the General Partner in the case of the Labour Hire Company); (c) providing permanent protective edge protection to the roof (or requiring it to be provided by the General Partner in the case of the Labour Hire Company).

13. It was further conceded by the General Partner that in breach of its s 20 duty that it failed to take the reasonably practicable steps set out in [12](a)-(c).

The Elements of the Offences

14. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendants. It is not for the defendants to prove their innocence, but for the prosecution to prove their guilt and to prove it beyond reasonable doubt.

The category 1 offences

15. Section 31 of the Act provides:

(1) A person commits a Category 1 offence if--

(a) the person has a health and safety duty, and

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and

(c) the person--

(i) engages in the conduct with gross negligence, or

(ii) is reckless as to the risk to an individual of death or serious injury or illness.

(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.

16. The elements of the s 31 offence are:

17. Element A – The defendant has a health and safety duty imposed by the Act.

18. Element B – The defendant without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness.

19. Element C – The defendant engages in the conduct with gross negligence or is reckless to the risk to an individual of death or serious injury or illness.

20. The prosecution bears the onus of proving that the conduct was engaged in without reasonable excuse: s 31(2) of the Act.

The category 2 offences

18. Section 32 of the Act provides:

A person commits a Category 2 offence if:

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

19. The elements of the s 32 offence are:

20. Element 1 - The defendant had a health and safety duty imposed by the Act.

21. Element 2 - The defendant failed to comply with its health and safety duty.

22. Element 3 - The failure exposed an individual to a risk of death or serious injury.

23. The elements of the s 32 offence for a breach of the s 28(b) duty are:

24. Element **(**a) - The defendant was a worker who engaged in conduct “while at work”.

25. Element **(**b) - The defendant failed to take reasonable care that his or her acts or omissions did not adversely affect the health and safety of other persons; and

26. Element **(**c) - The defendant’s breach of duty exposed an individual to a risk of death or serious injury.

27. In order for a defendant to have a health and safety duty under s 19(1) of the Act, the defendant must:

(a) be a person conducting a business or undertaking (PCBU); and (b) engage workers, or influence or direct the activities of the workers.

22. In order for a defendant to have a health and safety duty under s 20 of the Act, the defendant must:

(a) be a person conducting a business or undertaking (PCBU); and (b) the business or undertaking must have the management or control of a workplace.

23. In order for a worker to have a health and safety duty under s 28(b) of the Act, the defendant must:

(a) be a worker, and (b) engage in conduct “while at work”. [2]

24. The General Partner admitted that it was a PCBU and that it owed a health and safety duty pursuant to s 19(1) of the Act because it engaged and/or directed the workers and pursuant to s 20 of the Act because it had the management or control of the workplace. For the s 31 offences, the General Partner did not put in issue that it engaged in conduct without reasonable excuse that exposed the workers to a risk of death or serious injury. The General Partner has pleaded guilty to the s 32 offences.

25. The Limited Partner has pleaded not guilty to all offences brought against it on the basis that it did not owe a health and safety duty to the workers, because it:

(a) was not a PCBU, and/or (b) did not engage the workers, influence or direct their activities and/or (c) did not have control or management of the workplace.

26. The Labour Hire Company admitted that it was a PCBU and that it owed a health and safety duty pursuant to s 19(1) of the Act because it engaged the workers. For the s 31 offence, the Labour Hire Company did not put in issue that it engaged in conduct without reasonable excuse that exposed the workers to a risk of death or serious injury. The Labour Hire Company has pleaded guilty to the s 32 offence.

27. Michael has pleaded not guilty to the s 32 offence on the basis that:

(a) the evidence does not establish to the criminal standard that he was “at work” at the time when he instructed Jayanthan to undertake the task of cleaning the solar panels, and thereby he did not owe a health and safety duty pursuant to s 28(b) of the Act, and/or (b) he did not breach his s28(b) duty by failing to take the steps pleaded in [7] of the Summons, because those steps were not within the scope of the duty imposed on him as a worker; and/or (c) his breach of duty was not a substantial or significant cause of the workers being exposed to a risk of death or serious injury.

Issues

28. The issues in the case are:

29. Can the corporate defendants rely on the revised answers they have provided to SafeWork NSW to questions they were required to answer in s 155 Notices?

30. In relation to the Category 1 offences, does the evidence establish the fault element of the offence that the corporate defendants were either:

(a) grossly negligent, or (b) reckless to the risk to an individual of death or serious injury?

3. Did the Limited Partner owe a health and safety duty? The sub-issues are:

(a) was the Limited Partner conducting a business or undertaking? (b) did the Limited Partner engage the workers, or influence or direct their activities and thereby owe a health and safety duty under s 19(1) of the Act? (c) did the Limited Partner have the control of the workplace and thereby owe a health and safety duty under s 20 of the Act?

4. If the answer to (3) is yes, was it reasonably practicable for the Limited Partner to take the steps set out in [11] of the relevant Summons?
5. Noting the admissions of the General Partner and the Labour Hire Company that they breached their work health and safety duty for the Category 2 offences, by failing to take the reasonably practicable steps set out in [12](a)-(c) and [13] above, did the General Partner and the Labour Hire Company breach the health and safety duty owed by them, by also failing to take the steps particularised in the relevant Summonses?
6. Did Michael Zammit owe a health and safety duty pursuant to s 28(b) of the Act? In particular, was Michael Zammit “at work” when he gave the relevant instructions to Jayanthan?
7. Did Michael Zammit breach his s 28(b) duty by failing to take the steps set out in [7] of the relevant Summons?
8. Did Michael Zammit’s breach of duty expose the workers to a risk of death or serious injury?

Evidence

29. The evidence consisted of the tender of a large volume of documents and oral evidence from the following witnesses:

(a) Sedhurajan Velusamy, a general hand/cleaner; (b) Thavathasan Ponnuthurai, a general hand/cleaner; (c) Belinda Zvirblis, the financial manager of the Group; (d) Jayanthan Sithiravel, a maintenance worker and weekend supervisor in the Pet Food Business; (e) Jamie Brown, a business consultant to the Group; (f) Jason Zammit; (g) Charles Zammit; (h) Inspector Joshua Kent; and (i) Alexander Flyak, the independent accountant for the Group.

Credit

30. Before turning to finding facts based on the evidence, it is necessary to make some findings about the credit of the witnesses called to give evidence.

Prosecution witnesses

31. Ms Zvirblis had been employed by the Limited Partner and then the Labour Hire Company for about 26 years. In her role as financial manager of the Group Ms Zvirblis was responsible for managing the payroll and accounts payable. Ms Zvirblis gave evidence that she was employed by the Labour Hire Company and assigned to work for the Partnership. For reasons that I will come to, I do not accept as a matter of law that the workers [3] were assigned to work for the Partnership, and I have found that they were assigned to work for the General Partner. However, I accept that Ms Zvirblis’ answer was truthful because it coincided with what she understood to be the taxation arrangements of the Partnership that it was to be treated as a corporation. She also acted as a personal assistant to Charles and Jason when required. To the extent that she assisted in providing responses to s 155 Notices she did so as an assistant to Charles and not as a responsible person of any of the corporate defendants. It was put to Ms Zvirblis in cross-examination, as a positive proposition and she accepted, that between 2006 and April 2015 that the Limited Partner operated the business. I reject that evidence because it does not coincide with the contemporaneous documents reviewed by Mr Flyak, and I prefer that evidence. Ms Zvirblis appeared to me to understand her role and the accounting practices that she employed to financially administer the business of the Partnership, but I am not satisfied that she had any in depth understanding of the limited partnership structure or what it was intended to achieve. I accept that Ms Zvirblis was doing her best to tell the truth and that I accept the balance of her evidence.

32. Mr Brown was not cross-examined and no issue was taken with his evidence. I accept Mr Brown’s evidence.

33. Mr Velusamy had a limited ability to speak English and cannot read English. He received all instructions whilst working at the Factory and/or the Shop from Jayanthan in the Tamil language. He gave his evidence with the assistance of a Tamil interpreter. Mr Velusamy’s evidence was limited by his understanding of English and the translation of some concepts. However, I am satisfied that Mr Velusamy was trying to do his best to tell the truth and that his evidence should be accepted.

34. Mr Ponnuthurai also had a limited understanding of English, cannot read English and gave his evidence with the assistance of a Tamil interpreter. He was usually supervised by Jayanthan and given instructions in the Tamil language. Mr Ponnuthurai’s evidence was easier to follow than the evidence of Mr Velusamy. I am satisfied that Mr Ponnuthurai was trying to do his best to tell the truth and that his evidence should be accepted.

35. Jayanthan’s understanding of English was better than Mr Velusamy and Mr Ponnuthurai, but he still required the assistance of the Tamil interpreter during some parts of his evidence. He regularly took instructions from Michael in English and as I understood his evidence, he had a sufficient understanding of English to do so. Jayanthan presented as a good witness who was eager to assist whoever was asking him questions. However, on the topic of the instructions that Michael had given him about staying away from the skylights, I formed the impression that he overstated what was said and/or overemphasised how it had been said. I am satisfied that he did so because he thought those instructions were critical to the outcome of the case and that influenced him to supply emphasis. Apart from that, Jayanthan was a thoughtful and helpful witness and I am satisfied that his evidence should be accepted.

Defence witness

39. Mr Flyak has been providing accounting services, taxation, financial and structural advice to the Group since 2012 as an employee of the Group’s former accountant and as a director of his own firm since 2014. He was called to give evidence in the defence case. Mr Flyak was instrumental in the adoption of the limited partnership and trust structure by the Group in 2015. Mr Flyak’s understanding of the relevant facts has been obtained from the primary business records of the Group that are reflected in the financial statements and taxation returns he has prepared for and on behalf of the relevant corporations and partnerships. In the course of preparing to give evidence in these proceedings, Mr Flyak came to believe that he may not have accurately described the activities of the Limited Partner in its financial statements and tax returns and he gave evidence that he has taken steps in the 2023 documents to correct the position. He was challenged on that evidence. As a practical and prophylactic measure, I granted him a certificate under s 128 Evidence Act 1995 (the Evidence Act) relating to that evidence, which was not opposed by the prosecutor. I have taken that into account in assessing his evidence and his credit. For reasons that I will come to, I reject Mr Flyak’s opinion evidence as to the correct descriptions of the activities of the Limited Partner in its financial statements and tax returns. However, I am satisfied that the contemporaneous business records overwhelmingly demonstrate that in the period between 2015 and 22 May 2021 (the relevant period), the Limited Partner:

(a) did not have a bank account; (b) did not enter into any agreement with any other person on behalf of the Partnership; (c) did not employ any individual to undertake work on its behalf; (d) did not pay any expenses on behalf of the Partnership; (e) did not receive any income on behalf of the Partnership; (f) did not engage any workers to undertake work on its own behalf or on behalf of the Partnership; (g) did not receive any distribution of profit from the Partnership; (h) conducted itself in accordance with the Partnership Deed; and (i) did not take part in the management, conduct or operation of the Partnership business.

40. My rejection of this part of Mr Flyak’s evidence was not in any way based on his veracity. Mr Flyak was a careful and considered witness. In my view, he was trying to do his best to give truthful evidence and I accept the balance of his evidence, without hesitation. He presented as a witness, who consistent with his pending admission as a legal practitioner, had the utmost respect for the Court and its processes and a thorough understanding of the need to tell the whole truth and nothing but the truth.

Issue 1 Can the corporate defendants rely on the revised answers they have provided to SafeWork NSW to questions they were required to answer in s 155 Notices?

Background

41. It is necessary to deal with Issue 1 as a preliminary matter, as it informs the evidence to be considered in making my factual findings.

42. In the course of the investigation following the incident, the SafeWork inspectors issued a number of Notices pursuant to s 155 of the Act (the s 155 Notices) requiring the corporate defendants, other companies within the Group and a number of individuals to provide information in the knowledge of the recipient.

43. In response to the s 155 Notices, the corporate defendants, the companies and the individuals provided responses to SafeWork NSW (the original answers).

44. I am satisfied on the evidence that Charles was primarily responsible for providing the original answers and that he did so after speaking with Jayanthan and others about what had occurred in the incident. He sourced the documents provided with the original answers from Mr Flyak, with the assistance of Ms Zvirblis. Where the answers were typed and sent by email, I find that Ms Zvirblis provided the information in accordance with Charles’ instructions and not as a responsible person on behalf of the relevant company. Charles provided the original answers as a responsible person on behalf of the companies with the assistance from Mr Sant. It was common ground that the original answers prepared by Charles were admissions of the relevant companies.

45. In the course of preparing the case the defendants came to retain solicitors and counsel who regularly appear in WHS prosecutions. As a result of receiving advice from those legal representatives, the relevant persons provided further and/or revised information in response to the s 155 Notices, on the basis that the earlier answers were not a complete or accurate response to the initial requests in the s 155 Notices (the revised answers).

46. The prosecutor refused the defendants’ requests to tender the revised answers, in addition to the original answers. The defendants sought to tender the revised answers and the prosecutor objected to the tender. I admitted the revised answers provisionally pursuant to s 57 of the Evidence Act.

47. In so far as I understand the prosecutor’s argument, it is that the original answers are admissions against interests made by the corporate defendants, and as such are more likely to be reliable than the self-serving statements made in the revised answers. Although it was not expressly articulated, I infer that the prosecutor’s objection was based on the exception in s 85(2) of the Evidence Act.

48. The corporate defendants contend that the original answers were provided by the relevant persons who did not have a proper understanding of the structure of the Group or the concept of a limited partnership and that the revised answers are consistent with the contemporaneous documents establishing the Partnership and the contemporaneous business records that demonstrate that the General Partner has undertaken the management, conduct and operation of the Partnership business and that the Limited Partner has not. The corporate defendants say that the revised answers were compiled and served because in their view there is a continuing duty of disclosure to answer requests for information made under s 155 of the Act.

Discussion

Relevant provisions of the Evidence Act

49. The starting point is:

(a) the original answers given by the corporate defendants were admissible as admissions against the corporate defendants, pursuant to s 85(1) of the Evidence Act; (b) the original answers given by Charles were admissible as admissions of the corporate defendants because as a director, Charles had the authority of the corporate defendants to make statements on their behalf pursuant to s 87(1)(a) of the Evidence Act; (c) the original answers given by Charles on behalf of the General Partner were admissible against the Limited Partner because the General Partner had the authority to bind the Limited Partner by agreement in the Partnership Deed; (d) the original answers given by persons who were not defendants such as Dubavo Pty Ltd, an owner of the Shop, were not admissible as admissions and were hearsay, however their tender was not objected to by the corporate defendants; and (e) the original answers of the corporate defendants and Charles were not tendered against Michael.

50. The revised answers by the corporate defendants and Charles were admissible against the corporate defendants if they were admissions made to an investigating official, unless “the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected”: s 85(2) of the Evidence Act.

A summary of the revised answers

51. The revised answers provided by Charles and the Labour Hire Company were prefaced by the following “Introduction”:

We refer to questions issued under a s 155 Notice of the Work Health and Safety Act 2011, notice 7-405574, dated 5 October 2021 and in particular the signed response which was sent on 27 October 2021.

It has recently come to our attention that some of the answers contained in the response are inaccurate or could be read in a way which leads the reader to an inaccurate answer. As part of our continuing obligation under the notice we supply the following answers to correct those issues.

Although PHBC LH Pty Ltd is a legally separate company it only exists as a financial and administrative vehicle for employing and hiring out employees to other entities within the Pendle Ham and Bacon Group. It centralises and simplifies payroll management, benefits administration, and compliance-related responsibilities for each company in the Pendle Ham and Bacon Group, rather than these requirements and tasks being undertaken within each other entity. PHBC LH Pty Ltd does not participate in any activity or engage with any entity outside the Pendle Ham and Bacon Group, as do traditional labour hire companies.

PHBC LH Pty Ltd does not operate from its own premises or employee any dedicated personnel to manage the employment services for the other entities within the Pendle Ham and Bacon Group. The employees who perform these tasks also do work for other entities within the Pendle Ham and Bacon Group.

The directors of PHBC LH Pty Ltd are the same directors of entities within the Pendle Ham and Bacon Group.

Accordingly:

1. the knowledge held by those entities is also knowledge held by PHBC LH Pty Ltd; and

2. the conduct of the other entities in relation to work health and safety matters involving the employees provided by PHBC LH Pty Ltd is viewed as being, in substance, also the conduct of PHBC LH Pty Ltd This is not a transfer or contracting out of the duties on PHBC LH Pty Ltd, rather an acknowledgement and reflection of the non-operational role that PHBC LH Pty Ltd performs and the common directorship and management of PHBC LH Pty Ltd and the entities within the Pendle Ham and Bacon Group.

The Pendle Ham and Bacon Group comprises several entities. Relevantly:

1. Pendle Ham and Bacon Pty Ltd ABN 31 604 955 786 (Pendle Ham and Bacon Pty Ltd) is the General Partner of the Pendle Ham and Bacon Curers Partnership (Partnership), which is a limited partnership established pursuant to the Partnership Act 1892 (NSW) (Partnership Act) and a deed of partnership dated 16 April 2015 (Deed of Partnership).

2. The Partnership trades as Pendle Ham and Bacon Curers (Business).

3. Pendle Ham and Bacon Curers Pty Ltd ABN 57 001 221 825 (Pendle Ham and Bacon Curers Pty Ltd) is the Limited Partner of the Partnership.

The Partnership Act and the Deed of Partnership do not permit the Limited Partner, Pendle Ham and Bacon Curers Pty Ltd, to participate in the management, conduct and operation of the Business. Particularly, Pendle Ham and Bacon Curers Pty Ltd does not:

1. conduct any activity to make a profit; or

2. conduct any activity for non-profit purposes or for commercial purposes; or

3. operate an enterprise; or

4. have any control of the Business or the Business premises; or

5. engage anyone to work for it or anyone else; or

6. influence or direct how any work is performed for the Business; or

7. operate a bank account.

The Partnership Act and the Deed of Partnership require the General Partner, Pendle Ham and Bacon Pty Ltd, to wholly manage, conduct and operate the Business.

For taxation purposes the Australian Taxation Office treats and taxes the Partnership as a corporation, even though it is not a legal entity, and treats Pendle Ham and Bacon Pty Ltd, and Pendle Ham and Bacon Curers Pty Ltd, as shareholders of the Partnership.

In the Schedule of Questions to the Notice it is stated that all references to “Pendle Ham and Bacon” are a reference to PHBC LH Pty Ltd. The revised answers are provided adopting this reference.

52. The revised answers by Charles:

(a) described the incident, the system of work and the remedial steps taken after the incident in terms that were consistent with the evidence; (b) did not seek to withdraw any admission made by the General Partner or the Labour Hire Company; (c) clarified the involvement of the Labour Hire Company within the Group in accordance with an orthodox legal understanding of the responsibilities of a labour hire company.

53. The revised answers by the Limited Partner:

(a) replaced any reference to “Pendle Ham & Bacon Curers Partnership (A Limited Partnership)” in the original answers with “Pendle Ham & Bacon Pty Ltd as General Partner for and on behalf of the Partnership”; and (b) provided additional information of payments by the General Partner and other companies within the Group to the Labour Hire Company.

54. The revised answers by the General Partner:

(a) replaced any reference to “Pendle Ham & Bacon Curers Partnership (A Limited Partnership)” in the original answers with “Pendle Ham & Bacon Pty Ltd as General Partner for and on behalf of the Partnership”; (b) included an explanation that contrary to the original answer that the Partnership paid the Labour Hire Company for the supply of labour was taken from the Partnership financial statements, on closer examination it was the General Partner that paid the Labour Hire Company for the supply of labour for and on behalf of the Partnership.

55. The revised answers by the Labour Hire Company restated the explanation provided in [53](b) above.

56. There were no revised answers submitted for Timaz Investments Pty Ltd and PHBCT Pty Ltd. The revised answers for Dubavo Pty Ltd changed references to the Partnership to references to the General Partner for an on behalf of the Partnership.

Were the revised answers admissions?

57. “Admission” means a previous representation made by a person who becomes a defendant in a criminal proceeding that is adverse to the person’s interest in the outcome of the proceeding. [4] A previous representation is defined to include an express or implied representation or a representation inferred from conduct.

58. In Kuhl v Zurich Financial Services Australia Pty Ltd (2011) 243 CLR 361 at [64] Heydon, Crennan and Bell JJ observed:

Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth.

59. In general, the courts have taken a broad view of the term “admission” to include facts inferred from words or conduct: R v Horton (1998) 104 A Crim R 306 at 317 (Wood CJ at CL). Because the definition refers to an admission being adverse to the person’s interest in the outcome of the proceedings, rather than at the time it is made, an exculpatory representation may be an admission if it is relied on as an implied admission.

60. It is beyond question that the revised answers are admissions of the General Partner and the Labour Hire Company and that those admissions are consistent with the basis on which the General Partner and the Labour Hire Company have entered pleas of guilty to the Category 2 offences pleaded against them.

61. I am also satisfied that the revised answers contain admissions by the General Partner that bind the Limited Partner. In particular, the admission by the General Partner that it operated the Partnership business on behalf of the Partnership is an admission of the Limited Partner that consistent with cl 11.2 of the Partnership Deed that the Limited Partner ceded all of the management, conduct and operation of the Partnership business to the General Partner.

62. The revised answers are most relevant to the determination of Issue 3. When dealing with Issue 3 I have concluded that s 5(3) of the Act refers to partners conducting the one business and as a consequence both partners conducted the Partnership business. The result of that analysis is that the Limited Partner is a PCBU.

63. I have also concluded when dealing with Issue 3 that the Limited Partner caused the workers to be engaged by agreeing to allow the General Partner to operate the Partnership business on behalf of the Partnership and was a partner of the business that had management or control of the work place.

64. Those findings in combination establishes an element of one of the offences pleaded against the Limited Partner and is thereby adverse to the Limited Partner in the outcome of the proceedings.

65. For these reasons, I am satisfied that the revised answers of Charles and the corporate defendants constitute admissions.

Were the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected?

66. The prosecutor contended that the revised answers were self-serving and were a reconstruction of matters put forward to fit in with the case theory pursued by the corporate defendants. I do not agree.

67. The revised answers were entirely consistent with the contemporaneous documents establishing the limited partnership and the large volume of contemporaneous business records kept by the Group relating to the operation of the Shop and the Factory by the Partnership. This was not a case where a corporate defendant was trying to mould a case inconsistent with contemporaneous documents, but the exact opposite.

68. It was apparent from the evidence of Jason, Charles and Ms Zvirblis that they did not understand the structure of the Group or the limited partnership concept.

69. Ms Zvirblis understood that as a matter of accounting practice for the Group that the General Partner was the company that received the revenue of the Partnership for the Shop and expended funds for it through the Partnership Bank Account, [5] and she recorded the income and expenses accordingly. Ms Zvirblis also gave evidence that from her knowledge of the payroll that all of the workers in the Group were employed by the Labour Hire Company as was demonstrated by Michael’s payslip and the payslips of the workers. The General Partner made payments to the Labour Hire Company for the hire of the workers assigned to work for it from the Partnership Bank Account and this was also confirmed in the financial statements and company tax returns prepared for the Partnership.

70. Mr Flyak gave evidence that he was not the architect of the Group structure and that he relied on the advice of a specialist law firm to establish the limited partnerships of the Group. He was involved in setting up the structure which involved the incorporation of the General Partner, the execution of the Partnership Deed, the opening of a bank account in the name of the General Partner and the registration of the limited partnership pursuant to s 50A of the Partnership Act. Once established, Mr Flyak gave evidence that the limited partnership structure for the Shop has been implemented through the General Partner undertaking the conduct of the Partnership business and that this is reflected in the contemporaneous business records he has been given for the purpose of preparing financial statements and company tax returns for the limited partnership since its inception. Mr Flyak also gave evidence that all of the workers used by the General Partner are employed by the Labour Hire Company.

71. I accept that the revised answers were proffered by the defendants because they had received legal advice that the original answers were not consistent with the correct legal position and could be misleading. I am satisfied that by proffering the revised answers, the Group intended to seek to correct the record on the basis that s 155 imposed a continuing duty of disclosure. For present purposes, I do not need to determine if s 155 of the Act imposes a continuing duty of disclosure.

Conclusion on Issue 1

73. In all of the circumstances, I am satisfied that the admissions made in the revised answers of Charles and the corporate defendants were reliable and should be admitted.

74. However, where the original answers contain admissions to matters that were non-responsive to the original question in the relevant s 155 notice or pertains to a topic other than the limited partnership structure or the operation of the Group, the prosecutor is entitled to rely on those admissions if they are relevant to a fact in issue and the provision of the revised answers should not be taken to have withdrawn any admission made in the original answers.

Facts

75. The parties tendered an Agreed Statement of Facts which I have incorporated into my findings of fact. I will not repeat matters I have already referred to and will use the terms I have already defined. The following matters represent my findings of fact unless stated otherwise.

Background

The Pendle Ham and Bacon Group

76. The Zammit family controls a number of companies and trusts that operate a vertically integrated business in the meat and smallgoods industry, which I will refer to as the Pendle Ham & Bacon Group (the Group). The Group raises livestock which it processes at its abattoir, smallgoods factory and pet food factory, into meat, smallgoods and pet food that are sold on a wholesale basis and on a retail basis to consumers from the Shop.

77. The Group consists of four separate limited partnerships that each operate a separate business that can be described as follows: [6]

(a) the Boen Boe Partnership is a limited partnership that operates a livestock business referred to in the Group as the Farm. The Boen Boe Partnership is operated by Boen Boe Pty Ltd as the general partner with a 1% interest. Timaz Investments Pty Ltd and Charles are the limited partners and each hold a 49.5% interest. The Farm operates from rural properties in the Southern Highlands; (b) the PHBC Partnership is a limited partnership that operates an abattoir business, referred to in the Group as the Abattoir. The PHBC Partnership is operated by PHBCP Pty Ltd as the general partner with a 1% interest. Charles is the limited partner and holds a 99% interest. Charles is also the trustee of the PCHP Trust; (c) the Pendle Ham & Bacon Curers Partnership is a limited partnership that operates a business producing and selling meat and smallgoods products, referred to in the Group as the Shop. The Pendle Ham & Bacon Curers Partnership is operated by Pendle Ham & Bacon Pty Ltd as the general partner with a 1% interest. Pendle Ham & Bacon Curers Pty Ltd is the limited partner and holds a 99% interest. Pendle Ham & Bacon Curers Pty Ltd is the trustee of the PHBC Absolutely Entitled Trust. The Shop business includes the retail premises at 142 Bungaree Road, Pendle Hill and the smallgoods factory (the Factory) that operates from a building next door to the Shop at 138 Bungaree Road, Pendle Hill; (d) the PHBC Super Partnership is a limited partnership that operates a pet food business which is referred to in the Group as the Pet Food Business. PHBCS Pty Limited is the general partner with a 1% interest. PHBC Pty Ltd is the limited partner and holds a 99% interest. PHBC Pty Ltd is the trustee of the Zammit Family Trust. The Pet Food Business trades under the name “Yummi Pet Food getting your pet’s lick of approval” (Yummi Pet Food) and operates from premises adjacent to the Shop and the Factory at 115/121 Ballandella Road, Pendle Hill.

78. There are also a number of other companies and trusts in the Group that own the premises from which the Group businesses operate. For example, the Shop building is owned by Dubavo Pty Ltd and Timaz Investments Pty Ltd. Rent is paid for the Shop building by the General Partner to PHBCS Pty Ltd as general partner of the PHBC Super Partnership and expenses relating to the property are paid by PHBCS Pty Ltd. Ms Zvirblis gave evidence that the rates for the Shop and the electricity accounts were paid by the General Partner. I infer that there was some internal accounting process to reflect what was demonstrated by the records seen by Mr Flyak. Not much turns on this because the General Partner admitted that it had control or management of the Shop.

The establishment of the present Group structure in 2015

79. The present structure of the Group was adopted in about 2015.

80. The original business of manufacturing and selling smallgoods was commenced by Charles. The Limited Partner was incorporated on 5 April 1974 and took over operation of the business from that time.

81. Ms Zvirblis gave evidence that up and until 2006 the business was operated by the Limited Partner and it held a bank account in its own name that was used to receive revenue generated and pay the costs of the business. From the commencement of Ms Zvirbis’ employment in about 1998, the business used a computer-based accounting system, known as Micronet. The system was originally set up by Micronet with the name of the Limited Partner (Pendle Ham & Bacon Curers Pty Ltd) displayed by the system.

82. Mr Flyak gave evidence that the contemporaneous documents demonstrate that the Limited Partner ceased operating the business on 18 April 2007 and that it did not trade again until about 2010. From 18 April 2007 to 23 June 2010 the business was operated by PHBCT Pty Ltd as trustee for the PHBC Absolutely Entitled Trust. On 23 June 2010 the Limited Partner replaced PHBCT Pty Ltd as the trustee for the PHBC Absolutely Entitled Trust and continued to operate the business until the restructure of the Group and the establishment of the Partnership in 2015.

83. The Partnership Deed was executed by the General Partner and the Limited Partner and dated 16 April 2015. The Partnership was registered as a limited partnership as required by s 50A of the Partnership Act on 22 June 2015 and was deemed to be formed on that day.

84. The limited partnership structure was adopted by the Group in 2015 with the assistance of a specialist law firm, Cleary Hoare Solicitors (CHS), who provided explanatory documents and advice to the Group’s accountant. Mr Flyak relied on the advice of CHS in taking the necessary steps to establish the limited partnerships in the Group, including the Partnership. Mr Flyak gave evidence that the limited partnership structure was adopted by each division of the Group because of a change to taxation treatment of corporate trustees operating a business, where the Australian Taxation Office (ATO) required all profit generated by a corporate trustee after the payment of company tax to be distributed to beneficiaries of the trust. This created the potential for additional tax liability for the beneficiary as well as practical problems for businesses wanting to retain profits within the business. A limited partnership was not required to distribute the profits generated by the business to the partners, thereby allowing the profits to be retained in the business so long as the limited partnership paid tax on those profits at the company tax rate.

85. I pause to note that a further advantage of the limited partnership structure was the limited liability of the Limited Partner. Section 60 of the Partnership Act provides that the liability of a limited partner to contribute to the liabilities of the partnership is limited to the amount of the limited partner’s liability recorded in the Register, which in the present case was $99.00. The limitation of liability is dependent on the limited partner not being personally liable and conducting itself in accordance with s 67(1) of the Partnership Act, that it “must not take part in the management of the business”: see for example, *(* [2022] NSWCA 22 at [41].

Relevant clauses of the Partnership Deed

88. Clause 3 provided as follows under the heading Name and Place of Business:

The business of the Partnership shall be conducted under the Business Names and/or such other names nominated by the General Partner at any time.

89. Clause 4 provided as follows under the heading Purposes of the Partners:

4.1 The purposes of the business of the Partners are, through the Partnership, to:

4.1.1 Engage in the business of manufacture and sale of meat products.

4.1.2 Acquire, own, expand, develop, maintain, operate, and hold for trade or investment any property.

4.1.3 Engage in any general business activities related to these purposes.

4.2 The additional purpose of the General Partner is to manage the Partnership and the business of the Partnership.

4.3 The additional purpose of the Limited Partners is to limit their liabilities as Partners as set out in Clause 8.

90. Clause 6 recorded that the Initial Capital Contribution of the Limited Partner was $99.00.

91. Clause 8 provided as follows under the heading Limitation of Liability:

8.1 Notwithstanding anything to the contrary in this Deed, the liability of each of the Limited Partners for the debts of the Partnership shall in no event exceed his Initial Capital Contribution.

8.1.1 As specified in Item 3 of the Schedule for Limited Partners.

8.1.2 As determined under Clause 6.3 for Additional Limited Partners.

8.2 Clause 7.3 shall not apply to any determinations under Clause 8.1

8.3 The Limited Partners are under no obligation to, and will not be required to, make additional contributions to the capital of the Partnership.

92. Clause 11 relevantly provided as follows under the heading Management and Commissions:

11.1 Nothing in this clause shall affect the operation of Clause 8.

11.2 The General Partner shall devote such time to the Partnership as shall be reasonably necessary to conduct the Partnership business in an efficient manner. The General Partners shall have sole and complete charge of the management, conduct and operation of the Partnership business in all respects and in all matters and shall have the power on behalf of the Partnership to bind the Partners and the Partnership as the unlimited agent of the Partners and the Partnership.

11.3 Without limiting the generality of Clause 11.1 and of the Act, the Limited Partners acknowledge that:

11.3.1 The General Partner may borrow on the security of the assets of the Partnership from a lending institution to be determined by it, but only after giving ninety (90) days’ notice of such a proposal to each Limited Partner.

11.3.2 The General Partner may give and sign such securities and documents as required by the lender and agreed to by the General Partner.

11.4 In addition to anything contained elsewhere in this Deed:

11.4.1 Each of the Limited Partners, for the purpose of securing the proprietary interests of and the performances of obligations owing to the General Partner and to the other Limited Partners, irrevocably constitute and appoints the General Partner his true and lawful attorney, in his name, place and stead to:

11.4.1.1 Make, execute, acknowledge, record and register the Statement and any amendment to it, any Application to Register a Business Name and Change of Particulars of a Business Name, which may be required to be filed or recorded by the Partnership;

11.4.1.2 Make, execute, acknowledge, record and register any other document required to be executed by the Limited Partner under this Deed if the Limited Partner has not executed it and returned it to the General Partner within fourteen (14) days of delivery of it by the General Partner to the Limited Partner.

11.4.2 The Power of Attorney provided for by Clause 11.4.1 shall survive the delivery of any assignment by a Limited Partner of the whole or any portion of his Limited Partnership interest.

11.4.3 The General Partner shall not use the power described in this paragraph to prejudice, defeat or in any manner deprive a Limited Partner of his rights or interest granted by this Deed, or by the laws of the State of New South Wales.

11.4.4 In addition, the Limited Partner by this Deed appoints the General Partner as its true and lawful attorney to execute all documents relating to the Asset.

11.5 Any of the Partners may engage in or possess an interest in other business ventures of every nature and description, independently or with others, and neither the Partnership nor the Partners shall have any right by virtue of this Agreement, in or to such other ventures or to the income or profits derived from them. Each Partner waives any rights he may have against the others for capitalising on information learned as a consequence of his connection with the affairs of the Partnership.

11.6 Such to Clause 21, all property of the Partnership shall be recorded and registered in the name of the General Partner subject to the respective rights and interests of the Partners.

11.7 The General Partner shall cause an account in the name of the Partnership to be opened at a Bank chosen by the General Partner to be operated by the nominees of the General Partner. These nominees shall (if more than one, jointly or severally, as decided by the General Partner) have power, to draw, endorse, accept, or otherwise deal in cheques, bills of exchange, drafts or other evidence of payments by or to the Partnership or of indebtedness or liability of the Partnership.

11.8 In conformity with the Act, but subject to Clause 21, the Limited Partners shall have no power to sign for or to bind the Partnership. No salary shall be paid to any Partner in his capacity as Limited Partner.

11.9 The General Partner shall not be liable, responsible, or accountable in damage, or otherwise, to the Limited Partners for any acts performed by it or for failure to act within the scope of the authority conferred on it by this Deed or by law, except for acts of malfeasance. Without limiting the generality of the foregoing, the General Partner shall not be personally liable for the return of the capital or any other contribution of any of the Limited Partners. Such return shall be made solely from Partnership assets.

11.10 The General Partner shall be entitled to reimburse itself or other parties from Partnership funds from time to time for all liabilities and costs incurred in the discharge of its duties as General Partner.

11.11 The General Partner shall be entitled to pay itself from Partnership funds an annual management fee of 1% of the net value of the assets of the Partnership and shall be entitled to receive that payment at the end of ninety (90) days following the end of each Financial Year.

11.12 None of the Limited Partners shall take part in the management of the Partnership or its business.

93. Clause 21 provided as follows under the heading Holding of the Asset:

21.1 The Limited Partner is the Proprietor of the Asset.

21.2 The Limited Partner shall assign a one percent (1%) interest in the Asset to the General Partner for the price determined in accordance with Clause 21.3.

21.3 The price of the interest in the Asset under Clause 21.2 shall be the market value of the interest determined by an accountant appointed by the Limited Partner.

21.4 Stamp duty payable in respect of the transaction referred to in Clause 21.1 is payable by the General Partner.

21.5 To the extent that the Limited Partner remains on any relevant registered as the sole proprietor, it shall hold that 1% interest in the Asset as agent for the General Partner.

94. Schedule 1 of the Partnership Deed specified the business name as Pendle Ham & Bacon Curers Partnership, the principal place of business as 138 Bungaree Road, Pendle Hill and the Asset as:

The business known as Pendle Ham & Bacon Curers carried on at the Principal Place of Business and comprising all of the assets, including goodwill, the benefit of contracts, plant, equipment, the benefit of business premises, fixtures, fittings, debtors, receivables and consumables but excluding all interests in real estate.

The operation of the Partnership since 2015

95. The contemporaneous business records demonstrate that since its inception and during the relevant period, the Partnership has operated in the following way.

96. The General Partner has received all of the revenue of the Partnership into the Partnership Bank Account, which is in the name of the General Partner and reflecting its status as a general partner of a limited partnership.

97. The General Partner has incurred all of the expenses of the Partnership and paid those expenses from the Partnership Bank Account. This has included making payments to the Labour Hire Company for workers assigned to work at the Factory and the Shop and expenses incurred in relation to the occupation of and use of the Shop, such as rent, outgoings and safety infrastructure.

98. The only bank account operated for or on behalf of the Partnership is the Partnership Bank Account. The Limited Partner does not have or operate a bank account.

99. The statements of the Partnership Bank Account in evidence demonstrate that the General Partner has received all of the revenue and incurred all of the expenses of the Partnership, in the relevant period.

100. Ms Zvirblis gave evidence, which I accept, that she has administered the Partnership in accordance with the preceding paragraphs in the relevant period.

101. Mr Flyak gave evidence, which I accept, that he has received contemporaneous business records from the Partnership consistent with the preceding paragraphs and that he has undertaken his role as the Group Accountant on that basis and in accordance with his understanding of the relevant taxation laws and ATO requirements.

102. Mr Flyak’s evidence was that the Partnership has in the relevant period submitted company tax returns and paid tax on its profits at the corporate tax rate. All of the profits have been retained in the Partnership and there has been no distribution made in the relevant period to the General Partner or the Limited Partner. This is supported by the financial statements of the Partnership.

103. Mr Flyak prepared the financial statements for the Partnership, recording the revenue and expenditure of the Partnership, in accordance with the requirements of clause 10 of the Partnership Deed as if it was a legal entity. The Partnership is not in fact a legal entity. The obligation on the Partnership to submit a company tax return is a fiction imposed by the relevant tax laws and the requirements of the ATO. The financial statements of the Partnership cannot and should not be relied on as a representation of the General Partner or the Limited Partner as to the legal status of their dealings or responsibilities.

104. The imposition of taxation liability on partnerships, which are not legal entities, is a recurring feature of tax legislation. For example, a partnership is defined as an “entity” by the tax legislation in:

(a) s 8AAZA Taxation Administration Act 1953 *(*Cth) (the Administration Act) and thereby liable to pay primary tax debts, allocated to a running balance account (RBA), such as PAYG liabilities; and (b) s 184-1 and the dictionary in s 195-1 of A New Tax System *(*Goods and Services Tax) Act 1999 *(*Cth) (the GST Act) and thereby liable to pay GST on any taxable supply made by it. [7]

105. It is also pertinent to the issues in this case that the tax legislation often defines a partnership to include a limited partnership: s 3AA(2) Taxation Administration Act 1953 *(*Cth) and s 995-1 Income Tax Assessment Act 1997 *(*Cth) (the Tax Act).

106. The true position is that the revenue recorded in the Partnership financial statements has been paid by creditors to the General Partner into the Partnership Bank Account and the expenses have been paid by the General Partner from the Partnership Bank Account.

107. The financial statements of the General Partner and the Limited Partner have been prepared on the basis that they do not trade, consistent with the position that the ATO treats the Partnership as a corporation and the General Partner and Limited Partner as shareholders of that corporation.

108. Mr Flyak gave evidence that because no distribution of profit has been made to the Limited Partner by the Partnership in the relevant period, that the Limited Partner has not received any funds in its capacity as trustee of the PHBC Absolutely Entitled Trust from the operation of the Partnership.

Evidence of involvement of the Limited Partner

109. The prosecutor relied on some limited and isolated events to contend that the Limited Partner took an active role in the Partnership, and I will deal with those matters now.

110. First, on 3 March 2009 a product recall was issued relating to processed meat supplied by the business, under the control of Food Standards Australia (FSA). The product recall named the Limited Partner as the supplier of the products. The prosecutor contended that this contemporaneous event was inconsistent with Mr Flyak’s evidence that the Limited Partner was not operating the business in the period of 18 April 2007 to 23 June 2010. Mr Flyak gave evidence, which I accept, that he was informed that at the relevant time that the business was still using packaging that had been produced prior to April 2007 that referred to the Limited Partner as the manufacturer of the relevant products and that the product recall was issued in the name of the Limited Partner to correspond with the packaging details. The product recall is not strictly relevant to the present issue because it occurred prior to the relevant period and is relevant only to Mr Flyak’s credit. On the issue as to the operation of the business by the Limited Partner up and until 18 April 2007, I accept the evidence of Mr Flyak because I am satisfied that it was based on the primary contemporaneous business records of the Group.

111. Second, the prosecutor pointed to the appearance of the name of the Limited Partner on the records generated by the Micronet accounting system that were tendered. On this point, I accept the evidence of Ms Zvirbis that the name of the Limited Partner was entered into the Micronet system when it was installed for use by the Group in or about 1998 and not changed when the limited partnership structure was introduced in 2015. I am not satisfied that failure to change this internal reference on the accounting system was evidence against, or that changes my ultimate finding.

112. Third, the prosecutor relied on minutes of safety meetings prepared by Ms Zvirblis recording a meeting of the “Occupational Health and Safety Committee of Pendle Ham and Bacon Curers Pty Ltd” on 12 December 2018 and 29 March 2019. On this point I accept the evidence of Ms Zvirblis that her reference to the Limited Partner was a mistake made by her when she typed the documents and that she intended to refer to the General Partner. I also accept Ms Zvirblis’ evidence that she had no reason to revisit the documents to discover her error until it was pointed out to her by the defendants’ counsel, about two weeks before she was called to give evidence. I am not satisfied that the documents demonstrate that the Limited Partner convened safety meetings for the Shop or that the existence of the documents should alter my ultimate finding.

113. Fourth, the prosecutor contended that invoices from Skyhooks Difficult Access Team Pty Ltd (Skyhooks) for the installation of the permanent guardrail and safety anchors installed on the roof after the incident in 2021 were addressed to “Pendle Ham and Bacon Curers” and it followed that the Limited Partner was a party to those contracts. I reject that argument for the following reasons. Pendle Ham and Bacon Curers was the trading name of the Partnership and use of that name could have been a reference to both or either partner. The Skyhooks invoices were paid for by the General Partner in accordance with the practice adopted from 2015 onwards. I also accept Ms Zvirblis’ evidence that she did not know why Skyhooks had addressed the invoices in the way that it did and had no control over that. Having regard to the limited partnership structure and Ms Zvirblis’ knowledge that the invoices were to paid by the General Partner, I am not satisfied that Ms Zvirblis was under an obligation to seek to have the invoices reissued.

(a) an invoice from Forum Finance dated 29 July 2016 being a hire purchase rental payment for the solar system installed on the roof of the Shop; and (b) a letter from Commercial Safety Assurance Pty Ltd (CSA) being a proposal to establish a WHS system [8] dated 30 April 2019; and (c) an invoice from CSA dated 17 May 2019 for a deposit relating to the proposal in the above letter.

115. I accept Ms Zvirblis’ evidence that the invoices referred to in [114](a) and (c) above were paid by the General Partner from the Partnership Bank Account and that she did not have any input or influence over why the invoices were addressed to the Limited Partner. Whilst I accept that on their face the documents in [114] indicate an involvement of the Limited Partner in the management of the Shop premises and the implementation of safety in the Factory, [9] they are isolated examples of documents that exist in the context of a considerable and significant weight of contemporaneous documentary evidence that proves the contrary.

116. I am satisfied that there was a sensible explanation for preceding matters raised by the prosecutor and that the contemporaneous business records comfortably demonstrate that the Limited Partner did not enter into any relevant contract for the performance of work or maintenance of a workplace in the relevant period.

Mr Flyak’s evidence about the activities of the Limited Partner

117. The prosecutor also sought to discredit Mr Flyak’s evidence on the basis of the description of the Limited Partner’s business activities contained in its tax returns and financial statements. This evidence was contended to be relevant to the issue of whether the Limited Partner was a PCBU. I have not relied on Mr Flyak’s evidence because I have rejected some of it on this point. In the circumstances, the challenge to Mr Flyak’s evidence can be dealt with shortly.

118. From 2015 to 2022, Mr Flyak included the following entries in the documents that he prepared on behalf of the Limited Partner:

(a) in the financial statements of the Limited Partner:

Principal Activities

The principal activities of the company during the course of the year were Small Goods Manufacturer Wholesaler & Retailer.

No significant change in the nature of these activities occurred during the year.

(b) in the company tax returns for the Limited Partner Mr Flyak entered the Industry Code “11130” which was a reference to the description of the main business activity “Cured Meat and Smallgoods Manufacturing”.

119. Mr Flyak gave evidence, which I accept, that those entries were created by accounting software used by the Group’s accountants over the years to prepare financial statements and company tax returns which self-populated with that information from year to year.

120. In each year, the accuracy of those descriptions was declared to be correct to the ATO by Mr Flyak, Charles and Jason. [10]

121. As a result of preparing for the case, Mr Flyak became concerned as to whether the description of the activities of the Limited Partner included in the financial statements and the company tax returns by operation of the software were correct.

122. He concluded that they were not and in 2023 he prepared and lodged the documents containing the following entries:

(a) in the financial statements of the Limited Partner:

Principal Activities

The principal activities of the company during the course of the year were Trustee service.

No significant change in the nature of these activities occurred during the year.

(b) in the company tax return for the Limited Partner, Mr Flyak entered the Industry Code “64190” which is a reference to the description of the main business activity “Trustee Service”.

123. With respect to Mr Flyak, I do not accept that his conclusion reached in [122] above was correct and that it was necessary to change the documents. In my view, Mr Flyak was understandably confused on this point between the reality of the nature of the business conducted by the Limited Partner jointly with the General Partner and the tax treatment of the limited partnership.

124. The Partnership only operated one business processing and selling meat products. The Principal Activities description and selected Industry Code required a taxpayer to select the principal or main business activity or activities. In my view, the original entries were accurate.

125. Mr Flyak in the revised entries sought to portray the Limited Partner in accordance with his understanding of the nature of a limited partnership; that is, that the Limited Partner was a passive investor in the Partnership business.

126. I am not satisfied that this was the description of the Partnership business that was sought by the documents. Further, the role of a trustee service was not apt to describe the activities of the Limited Partner, even if Mr Flyak was correct to proceed on the basis that he did.

127. Notwithstanding that I do not accept this aspect of Mr Flyak’s evidence, I have ultimately concluded that I should accept his evidence about the limited partnership structure and the way that the Partnership operated because it is overwhelmingly supported by the contemporaneous business records.

The layout of the roof of the Shop

128. The Shop operated from a commercial building that was open to the public and offered meat, smallgoods and groceries for sale.

129. The Shop had a flat roof constructed of “Klip-Lok” flat metal roof sheeting that interlocked through square profile ridges and valleys. The ridges were 45mm high and spaced 200mm apart. The roof sheets were installed with the ridges running north-south. I pause to note that the ridges in the roof sheets presented a tripping hazard.

130. The roof had a raised plant room in the centre, which was elevated one storey above the main surface of the roof. There was a door on the western side of the plant room that provided access to the roof from an internal stairway. There was a parapet around the edge of the roof that varied in height depending on the slope of the roof. At no point was it higher than 900mm so that it could be relied on to prevent a fall over the edge of the roof. The edge of roof was about two storeys above the ground below.

131. The roof can be described as consisting of two rectangles joined in the centre on the long dimension, with a void cut out of the rectangles on the eastern side in the centre. Each rectangle measured approximately 45m by 20m.

132. There were two skylights installed on the western side of the centre line on each side of and next to the plant room (the northern skylights and the southern skylights). They were raised 180mm above the surface of the roof and measured 1114mm x 1114mm. Each skylight had a frosted perspex cover. As was demonstrated by the incident, the perspex covers were incapable of supporting the weight of a person. Each skylight was installed about 8m above the concrete floor of the Shop.

133. In July or August 2016 the General Partner paid for solar panels to be installed on the roof of the Shop.

134. On the southern rectangle of the roof, the solar panels were installed in 14 banks running north-south direction (the southern solar panels). On the northern rectangle of the roof, the solar panels were installed in five banks running east-west direction (the northern solar panels), as depicted in the photograph below:

135. The solar panels were affixed to tilt frames that allowed them to be installed on an angle to improve their performance. The southern solar panels were tilted from west (the low side) to east (the high side). The northern solar panels were tilted from north (the low side) to south (the high side). The high side of each panel was about 600mm above the surface of the roof.

136. There was a gap of about 2600mm between the edge of the southern skylights and the end of the closest banks of the southern solar panels.

137. At some time prior to the incident, a plastic cover (the red and white cover) was put over one of the southern skylights to prevent water leaking through a hole in the roof into the Shop below. The photographs depict that the red and white cover was placed over the most eastern of the southern skylights. The red and white cover was fashioned out of a thick plastic bag material that was white with red stripes on it. The red and white cover was placed in that position by Jayanthan and weighted down with pieces of wood and red trolley wheels that had black tyres, that he had carried up to the roof for the purpose of keeping the red and white cover in place. He could not recall who gave him the instruction to place the red and white cover over the skylight, but he believed it may have been Michael or Jason. Jayanthan gave evidence that the red and white cover was placed over the skylight a considerable time before the incident.

Organisation of the work

139. Michael was employed by the Labour Hire Company as a manager and had an office in the Factory. One of Michael’s responsibilities was to check the invoices and payments to be made that related to the operation of the Factory.

140. Part of his usual role each day was to solve problems that arose in the operation of the Factory. The workers considered Michael to be their boss and received instructions from him to undertake various tasks from time to time.

141. Michael had been a director of the General Partner, the Limited Partner and the Labour Hire Company previously but asked to step back from that responsibility when he experienced some personal issues. Michael continued after that time to be involved in decisions that affected the Partnership business through discussions with Charles and Jason. For example, it was Michael’s idea to install the solar panels on the roof of the Shop and he investigated the financial viability of doing so. The final decision to install the solar panels was made in consultation by Charles, Jason and Michael. For decisions involving significant expenditure, Charles had the final say on whether to approve them or not.

142. Michael was also involved in the engagement of CSA as a safety consultant in the Factory in about April 2019. Having regard to the total cost of engaging CSA, which was in the vicinity of $40,000 according to the invoice of 17 May 2019, it is likely that Charles finally approved the engagement of CSA.

143. There were other managers who worked in the Factory and provided instructions to the workers.

144. Jason gave evidence that Michael was “the general manager” because other managers working in the Shop, the Factory and the Pet Food Factory reported to him in relation to day-to-day operations. Charles gave evidence that Michael’s role was to manage production in the Factory. Charles accepted that Michael had other managers reporting to him for the Factory and the Pet Food Factory, but not the Shop.

145. Mr Ponnathurai and Mr Velusamy worked in the Factory and the Shop according to the work that they were asked to perform.

146. Jayanthan worked in the Factory and the Pet Food Business performing cleaning and maintenance tasks. He was in charge of pet food production on Saturdays and supervised other workers in that role from time to time. He spoke Tamil and gave instructions to other Tamil speaking workers who did not speak English. He considered each of Charles, Jason and Michael to be his boss. He received instructions from Michael to undertake maintenance tasks in the Factory, either by telephone or in person. Jayanthan also received instructions from Charles and Jason to perform maintenance work. Jayanthan either performed the work he was directed to do himself, asked other workers to assist him or directed other workers to undertake the work.

The task of cleaning the solar panels

147. Over time, the solar panels became less efficient due to the accumulation of dirt on their surface, requiring them to be cleaned.

148. About three or four years prior to the incident in May 2021, Michael took Jayanthan to the roof of the Shop and showed him that the solar panels required cleaning. Jayanthan gave evidence that Michael told him not to go too close to the edge of the roof, because that was a danger area. Michael told him not to go too close to the skylights and not to walk on them because they were “very light” and they could not support a large weight. Michael pointed out the skylights and Jayanthan observed that the covers on the skylights were made of white plastic. Jayanthan gave evidence that Michael told him to keep 2m away from the edge of the roof and that the workers were to walk along the beams of the roof and to keep a gap between each person.

149. Jayanthan cleaned the solar panels himself, with the assistance of other workers about three or four times before the incident. Jayanthan gave evidence that he had undertaken the task two or three times each year, when Michael asked him to do so. He could not recall the names of the workers that assisted him on the prior occasions. Bearing in mind that the solar panels were installed in 2016 and the evidence that Jayanthan was always involved in the task, I find that the solar panels had been cleaned no more than four times before the incident.

150. In or around May 2021, Michael provided verbal instructions to Jayanthan to clean the solar panels. Jayanthan could not recall when he received the instruction but gave evidence that it was given over the telephone while Jayanthan was at work. Jayanthan intended to undertake the task of cleaning the solar panels when he had the available time to do so.

System of work for cleaning the solar panels prior to the incident

151. Prior to the incident, there was an induction booklet and policy booklet provided to workers on commencement of employment. It did not refer to the task of cleaning the solar panels.

152. On the roof of the Premises, there did not exist:

(a) permanent protective covers over the skylights; (b) permanent guard rails around each skylight; (c) permanent guardrails around the edge of the roof; (d) temporary exclusion zones set back from each skylight by physical barriers such as temporary guard rails or delineating barricades such as barrier tape attached to bollards; and/or (e) pictorial warning signs.

153. None of the corporate defendants had a documented system of work in place at the time of the incident for the task of cleaning the solar panels.

154. None of the corporate defendants had undertaken and documented a risk assessment for the task of cleaning the solar panels prior to the incident.

Guidance material

155. Immediately prior to the incident, the relevant published guidance material included:

(a) WorkCover NSW – Safe Work on Roofs – Part 1 Commercial and Industrial Buildings, Code of Practice 2009 (the Roofs Code); (b) SafeWork Australia – Safe work on roofs: Information Sheet, January 2016; (c) SafeWork NSW – Falls through skylights and plastic roof sheeting Safety Alert, 14 September 2018; (d) SafeWork NSW – Code of Practice: Managing the risks of falls at workplaces, August 2019 (the Falls Code); (e) NSW Government Code of Practice: How to manage work health and safety risks, August 2019 (the Risks Code); and (f) SafeWork NSW – Incident Information Release: More workers falling through roofs in NSW, 4 August 2020.

156. Jason and Charles gave evidence that they were each unaware of the guidance material prior to the incident.

Events of 22 May 2021

157. At about 9.00am on 22 May 2021, Jayanthan instructed the workers to report to him to undertake the task of cleaning the solar panels.

158. Jayanthan took the workers to the roof and gave them instructions in the Tamil language as to how to clean the solar panels. He provided the workers with buckets, soap, a long brush and a hose to use to clean the solar panels.

159. Jayanthan gave evidence that he took the workers to the solar panels closest to the Factory (the northern solar panels) and demonstrated how to clean the solar panels using the soap and a hose. He told the workers to work safely and not to go near the edge of the roof but to stay between the rows of the solar panels, especially when cleaning the solar panels closest to the edge of the roof. Jayanthan gave evidence that he told the workers that if they stood near the edge of the roof that they could fall and that if Michael saw them near the edge of the roof that he would be in trouble. Jayanthan gave evidence that he told the workers not to go close to the skylights because they were dangerous and “not to sit, jump or play on the skylights”. For the reasons expressed, I do not accept that Jayanthan gave the instructions to stay away from the skylights in the terms conveyed by the quoted words but I am satisfied that he warned the workers that the skylights were dangerous because a person might fall through the perspex cover. I accept his evidence and the evidence of Mr Velusamy and Mr Ponnuthurai that he told the workers to stay away from the skylights and that he pointed out where they were. Jayanthan then took the workers to the other side of the roof and gave the same instructions.

160. Mr Velusamy gave evidence that Jayanthan told them “not to go to the edges” and not to go to “certain areas”.

161. Mr Ponnuthurai gave evidence that Jayanthan instructed them not to go near the “white sheets” on the roof, which he clarified later in his evidence to be a reference to the skylights.

162. None of the workers had experience in working at height and none of them had previously been involved with cleaning the solar panels.

163. After giving instructions to the workers, Jayanthan remained on the roof for about 15 minutes to watch the workers perform the task of cleaning the solar panels, before leaving to attend to other work. The workers commenced work cleaning the northern solar panels in accordance with Jayanthan’s instructions.

164. Jayanthan gave evidence that he believed that the workers understood his instructions and that if they followed those instructions that the work could be done safely.

165. When cleaning the first row of solar panels Mr Velusamy gave evidence that he stood on the higher side of the tilted solar panels and between the rows of solar panels and did not approach the edge of the roof. Mr Velusamy’s evidence was that the workers continued the work in this way. Mr Velusamy could not recall if Jayanthan came up to check on the progress of the work before lunch but accepted that it was possible that he did so.

Events after the incident

177. SafeWork NSW issued a prohibition notice to the Partnership and an improvement notice to the General Partner.

178. After the incident the following steps were taken:

179. Safe Work Procedures were reviewed and updated and a Safe Work Method Statement (SWMS) was prepared for the task of cleaning the solar panels and working at height.

180. The managers received refresher training on their responsibilities relating to safety.

181. Access to the roof of the Shop was restricted to authorised personnel, who had been trained on relevant SWMSs. The access door was locked and the code provided to authorised workers through a permit system.

182. An external consultant, Commercial Safety Assurance Pty Ltd (CSA) was engaged to review WHS policies and systems.

183. Permanent galvanised sheet metal covers were installed over the skylights, at a total cost of $1,358.50.

184. An external consultant, Skyhooks Difficult Access Team Pty Ltd (Skyhooks) were engaged to install a permanent guardrail around the edge of the roof and anchor points on the roof. Skyhooks also provided harnesses and developed a height safety system protocol.

185. The expenditure related to the matters referred to in the preceding paragraph was incurred by the General Partner.

The Relevant Law

Principles of Statutory Construction

180. Statutory construction begins with a consideration of the language used. Its meaning may require consideration in context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Alcan *(*NT) Alumina Pty Ltd v Commissioner of Territory Revenue *(*Northern Territory) (2009) 239 CLR 27 at [47].

181. Determination of the purpose of a statute or of a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate, by reference to extrinsic materials. However, this process does not involve a search for what the legislature had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Certain Lloyd’s Underwriters v Cross (2012) 87 ALJR 131 at [23]-[26].

182. The question of whether a court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills gaps disclosed in legislation or makes an insertion which is too big or too much at variance with the language used by the legislature. Lord Diplock’s three conditions in Wentworth Securities Ltd v Jones [1980] AC 74 should be considered before reading a provision as if it contained additional words and the additional words must be consistent with the wording of the provision: Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531 at [38]-[39].

183. Section 33 Interpretation Act 1987 provides that the interpretation of a provision that would promote the purpose or object underlying the Act shall be preferred to a construction that would not do so.

184. Extrinsic materials can be used as an aid to construction, but they are not a substitute for the language considered in context and cannot displace the meaning of the text: Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] and section 34 Interpretation Act 1987.

General matters

185. The objects of the Act are set out in s 3, which 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.

186. Section 12A of the Act provides:

Strict liability applies to each physical element of each offence under this Act unless otherwise stated in the section containing the offence.

187. A person is a “worker” if the person carries out work in any capacity for a person conducting a business or undertaking (PCBU), including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: s 7 of the Act.

188. A “workplace” is defined in s 8 of the Act to be a place where work is carried out for a business or undertaking and includes a place where a worker goes or is likely to be at work.

189. A duty provided for by the Act is not transferable and a person can have more than one duty: ss 14 and 15 of the Act.

190. Section 16 of the Act provides:

(1) More than one person can concurrently have the same duty.

(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3) If more than one person has a duty for the same matter, each person--

(a) retains responsibility for the person's duty in relation to the matter, and

(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

191. Section 17 of the Act provides:

A duty imposed on a person to ensure health and safety requires the person--

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

Person conducting a business or undertaking

192. Section 5 of the Act relevantly provides:

(1) For the purposes of this Act, a person conducts a business or undertaking--

(a) whether the person conducts the business or undertaking alone or with others, and

(b) whether or not the business or undertaking is conducted for profit or gain.

(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

193. The Act does not define “business” or “undertaking”.

194. Whether or not a person conducts a business or undertaking is a question of fact to be determined in the circumstances of each case.

195. Section 5(3) of the Act makes it clear that a “person” for the purpose of the Act is limited to an individual or a corporation, and does not include a partnership, which is not a legal entity, unless it is an incorporated partnership.

The s 19(1) duty – duty of a PCBU to ensure the health and safety of workers

196. The content of the duty is set out in s 19 of the Act, which 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.

…

(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 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

…

(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.

197. The requirement to “ensure” means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.

198. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.

199. The word “risk” is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].

200. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES *(*UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile *(*Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].

201. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: s 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it.

202. “Reasonably practicable” is defined in s 18 of the Act. The court must take into account and weigh up all relevant matters including;

(a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows, or ought reasonably to know about; (d) the risk, and (e) ways of eliminating or minimising the risk, and (f) the availability and suitability of ways to eliminate or minimise the risk, and (g) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

203. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke *(*BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

204. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi *(*Aust) Pty Ltd (2001) 205 CLR 304 at [37] (Gleeson CJ, Gummow and Hayne JJ).

205. The phrase “exposed to risks” contained in s 8(2) Occupational Health and Safety Act 2000 has been interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.

206. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].

207. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] (Gaudron J).

208. The words “reasonably practicable” indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] (French CJ, Gummow, Hayne and Crennan JJ).

209. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg *(*Aust) Pty Ltd [1999] NSWIRComm 453.

210. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 (Hill J) and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].

78 Management of risk of fall

(1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person.

Note: WHS Act--section 19 (see clause 9).

(2) Subclause (1) includes the risk of a fall--

(a) in or on an elevated workplace from which a person could fall, or

(b) in the vicinity of an opening through which a person could fall, or

(c) in the vicinity of an edge over which a person could fall, or

(d) on a surface through which a person could fall, or

(e) in any other place from which a person could fall.

(3) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves the risk of a fall to which subclause (1) applies is carried out on the ground or on a solid construction.

Maximum penalty--

(a) in the case of an individual--70 penalty units, or

(b) in the case of a body corporate--345 penalty units.

(4) A person conducting a business or undertaking must provide safe means of access to and exit from--

(a) the workplace, and

(b) any area within the workplace referred to in subclause (2).

Maximum penalty--

(a) in the case of an individual--70 penalty units, or

(b) in the case of a body corporate--345 penalty units.

(5) In this clause,

"solid construction" means an area that has--

(a) a surface that is structurally capable of supporting all persons and things that may be located or placed on it, and

(b) barriers around its perimeter and any openings to prevent a fall, and

(c) an even and readily negotiable surface and gradient, and

(d) a safe means of entry and exit.

219. Clause 79 of the Regulations provides:

79 Specific requirements to minimise risk of fall

(1) This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies.

(2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause.

Maximum penalty--

(a) in the case of an individual--70 penalty units, or

(b) in the case of a body corporate--345 penalty units.

(3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by--

(a) providing a fall prevention device if it is reasonably practicable to do so, or

(b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or

(c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.

Examples :

1 Providing temporary work platforms.

2 Providing training in relation to the risks involved in working at the workplace.

3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs.

Note : A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose.

(4) This clause does not apply in relation to the following work--

(a) the performance of stunt work,

(b) the performance of acrobatics,

(c) a theatrical performance,

(d) a sporting or athletic activity,

(e) horse riding.

Note : Clause 36 applies to the management of risk in relation to this work.

(5) In this clause,

"fall prevention device" includes--

(a) a secure fence, and

(b) edge protection, and

(c) working platforms, and

(d) covers.

220. Clause 5(1) of the Regulations relevantly provides:

221. “fall arrest system” means plant or material designed to arrest a fall. Example: An industrial safety net, a catch platform, a safety harness system (other than a system that relies entirely on a restraint technique system).

222. Clause 289 of the Regulations provides:

289 Meaning of "construction work"

(1) In this Chapter,

"construction work" means any work carried out in connection with the construction, alteration, conversion, fitting-out, commissioning, renovation, repair, maintenance, refurbishment, demolition, decommissioning or dismantling of a structure.

(2) Without limiting subclause (1),

"construction work" includes the following--

(a) any installation or testing carried out in connection with an activity referred to in subclause (1),

(b) the removal from the workplace of any product or waste resulting from demolition,

(c) the prefabrication or testing of elements, at a place specifically established for the construction work, for use in construction work,

(d) the assembly of prefabricated elements to form a structure, or the disassembly of prefabricated elements forming part of a structure,

(e) the installation, testing or maintenance of an essential service in relation to a structure,

(f) any work connected with an excavation,

(g) any work connected with any preparatory work or site preparation (including landscaping as part of site preparation) carried out in connection with an activity referred to in subclause (1),

(h) an activity referred to in subclause (1), that is carried out on, under or near water, including work on buoys and obstructions to navigation.

(3) In this Chapter,

"construction work" does not include any of the following--

(a) the manufacture of plant,

(b) the prefabrication of elements, other than at a place specifically established for the construction work, for use in construction work,

(c) the construction or assembly of a structure that once constructed or assembled is intended to be transported to another place,

(d) testing, maintenance or repair work of a minor nature carried out in connection with a structure,

(e) mining activities or petroleum activities.

222. Clause 291(a) of the Regulations defines “high risk construction work” as including construction work that “involves a risk of a person falling more than 2 metres.” This triggers the application of clause 299(2) of the Regulations, which requires a person carrying out high risk construction work to prepare a SWMS that must:

(a) identify the work that is high risk construction work, and

(b) specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards, and

(c) describe the measures to be implemented to control the risks, and

(d) describe how the control measures are to be implemented, monitored and reviewed.

223. Post incident conduct is some evidence that the steps taken were reasonably practicable. However, when it comes to the application of s 18 of the Act, that evidence may not be determinative of the issue. The court must be satisfied beyond reasonable doubt that the steps were reasonably practicable to achieve the provision of a safe working environment prior to the incident and not with the benefit of hindsight: Davis v Langdon [1911] 11 SR (NSW) 149; Nelson v John Lysaght *(*Australian Ltd) (1975) 132 CLR 201 at 215 (Gibbs J, Steven and Mason JJ agreeing), Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 at [268] and SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295 at [76].

The fault element for Category 1 offences

Gross Negligence

224. There is no definition of “gross negligence” in the Act.

225. It was common ground that the necessary degree of negligence is that required for the offence of manslaughter by criminal negligence. [11]

226. The test is an objective test [12] judged against the conduct of a reasonable person, [13] articulated to the personal attributes of the accused.

227. Gross negligence requires something considerably more than negligence of the sort that would give rise to civil damages. The offending conduct must involve:

(a) a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances; and (b) a high risk that death or grievous bodily harm would follow; and (c) in all of the circumstances warrants criminal punishment. [14]

228. The Act provides for significant maximum penalties for the commission of a Category 2 offence that involves a breach of s 32 of the Act. The maximum penalties provided for a Category 1 offence that involves a breach of s 31 of the Act are significantly higher and include gaol terms for Category 1 offences committed by an individual. It follows that the conduct that amounts to a contravention of s 31 of the Act must be correspondingly more serious, or else there would be no distinction between a breach of s 31 and a breach of s 32.

229. The steps taken by an accused to mitigate the risk are highly relevant, even if those steps were not sufficient to avoid a breach of the PCBU’s health and safety duty. In determining the degree of negligence of a PCBU, there is a significant difference between a PCBU who takes no steps to mitigate a risk and a PCBU that takes inadequate steps to mitigate the risk. To put it another way, a PCBU that has identified a risk of death or serious injury and has taken some potentially effective but inadequate steps to control it, is less likely to be considered to have engaged in gross negligence.

230. The nature of the risk involved is also relevant. This involves an assessment of both the consequences of the risk and the likelihood that it will occur. A highly dangerous task, such as the handling of explosives or electrical wiring, or frequent tasks involving risk, such as the use of sharp knives or the operation of hazardous machines, will more readily involve gross negligence where no steps are taken to control the risks, compared to a task involving less risk or a risk that is relatively unlikely to occur. In other words, there is a continuum against which inadequate steps are to be judged, involving both an assessment of the nature of the risk and the nature of any steps that were taken.

231. The tribunal of fact must assess all of the evidence, including the matters identified above, to determine if the PCBU’s failures were so gross as to justify a more serious finding than the existence of a breach of duty that exposes an individual to a risk of death or serious injury that would constitute a breach of s 32 of the Act.

Recklessness

232. There is no definition of “reckless” in the Act.

233. Recklessness has been described as “conscious risk-taking”: WorkSafe New Zealand v Waste Management NZ Ltd [2021] NZHC 3444.

234. A PCBU is reckless for the purposes of the s 31 offence if it foresees a possibility that its conduct could lead to an individual being exposed to a risk of death or serious injury: Aubrey v R (2017) 260 CLR 305 at [49].

235. In contrast to gross negligence, it is a subjective test that depends on the knowledge of the accused.

236. Section 244 of the Act provides:

(1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

(2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness.

(3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.

237. The degree of foresight of harm required depends on the social utility of the conduct: Aubrey at [49]. This is a matter that is affected by the reasonableness of the conduct. In Aubrey the plurality stated at [49]:

Of course, the reasonableness of an act and the degree of foresight of harm required to constitute recklessness in so acting are logically connected. So much is implicit in the notion of an accused's willingness to “run the risk” or to proceed notwithstanding a risk. As Glanville Williams observed, therefore, if the act in question is devoid of social utility, a jury might properly and more readily consider that foresight of a mere possibility of harm is enough to amount to recklessness. But, if the act in question has a slight degree of social utility, a jury might properly consider that foresight of something more than a mere possibility of harm is required.

238. Thrusting a pitchfork into a horse to see how it reacted, a palpably unreasonable act, meant that the foresight of a mere possibility that the horse might be killed was enough to amount to recklessness: Aubrey at [49] citing The Queen v Welch (1875) 1 QBD 23 at 23. Similarly, the ripping of a gas meter off a wall to steal money from within a house, required only the foresight of the mere possibility that gas might escape from the mains and injure an occupant to render the consequent injury of the occupant reckless: R v Cunningham [1957] 2 QB 396 at 399-401.

239. In Aubrey*,* the accused had unprotected sexual intercourse with the complainant over a six month period, when he knew he was suffering from the human immunodeficiency virus (HIV), and without disclosing that fact to the complainant*.* The High Court decided that the foresight required by the accused was “only the bare possibility of harm”: at [51].

240. As a further example, in Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27, the PCBU pleaded guilty to a Category 1 offence on the basis that the performance of electrical work on an industrial switchboard by an unqualified person involved foresight of the possibility that a person would be killed or injured as a consequence of that work, because the social utility of allowing the electrical work to be performed by an unlicensed person to save money was very low.

241. In contrast, the act of driving a motor vehicle will be foreseen all drivers to be productive of a possibility that it could result in death or bodily injury. But because driving is considered to be an act of considerable social utility, a killing or injury that results from driving is not judged to be reckless by reason only of the foresight of the mere possibility of injury: Aubrey at [49]. The High Court applied similar reasoning to the playing of contact sport, which it also described as having significant social utility.

242. The determination of whether an act has social utility is to be determined by the tribunal of fact through the application of commonsense: Aubrey at [50].

243. As a matter of commonsense a PCBU that has identified a risk of death or serious injury and has taken some potentially effective but inadequate steps to control it, is less likely to be found to have been reckless. The taking of inadequate steps needs to be considered in assessing if the PCBU believed, after taking those steps, that there remained a real possibility of death or serious injury.

244. The New Zealand High Court has held that in the context of a prosecution for an offence under the Act involving reckless conduct that, a PCBU that has mitigated a foreseen risk but does not believe that it has eliminated the risk and therefore must still appreciate the continuing existence of some level of risk when continuing on with the activity, is not guilty of acting recklessly unless it is proved that the level of risk understood to remain by the PCBU is the possibility of death or serious injury. [15] The Court went on to state:

[33] …acts of mitigation are relevant but pull in both ways in the reasoning process. Acts of mitigation inherently involve foresight of a risk since that is what is being mitigated against. Care will be needed though to understand what the perceived risk was before too much weight is attached simply to the fact of mitigation. Second, mitigation equally means it is possible or even likely that the mitigator believes the level of perceived risk has lessened. That is, after all, the purpose of mitigation. The more serious the risk being addressed – for example, the risk of death of a worker – the more one might think that a mitigator has acted so as to believe the risk has been reduced to negligible. [16]

245. The fault element of recklessness in s 31(1)(c)(ii) of the Act, refers to “the risk to an individual if death or serious injury or illness” and is a separate and different requirement to conduct that “exposes an individual to whom the duty is owed to a risk of death or serious injury or illness” in s 31(1)(b).

246. Cases such as Aubrey concern the consideration of the degree of foresight that the conduct would cause harm. Section 31 of the Act is concerned with foresight of the risk of death or serious injury or illness. Care needs to be taken so as not to express the test to suggest that it can be satisfied by proving knowledge of a possibility, that is that the offence is established by the knowledge that the possibility of a risk of death or serious injury may possibly arise.

247. It is important in the context of the structure of offences involving the breach of a health and safety duty prescribed by the Act to ensure that something more must be established to prove a Category 1 offence involving a breach of s 31, compared to what must be established to prove a Category 2 offence involving a breach of s 32. For example, it would be a rare s 32 case involving a fall from height in which a PCBU did not foresee the broad risk that a worker would suffer death or serious injury if they fell from height. The broad risk may have been known to the PCBU and recognised by it in a SWMS and the subject of control measures that were not sufficient to eliminate or minimise the risk in so far as that was reasonably practicable. If all that was required to establish a breach of s 31 is that the PCBU was aware of the risk of death or serious injury arising from the task of working at height then almost every s 32 offence could be elevated to a s 31 offence.

248. In my view, the Court needs to be satisfied that the PCBU’s knowledge extended beyond knowledge of the broad risk of falling from height to knowledge that performing the task in accordance with the work method adopted at the time of the incident would give rise to a risk of death or serious injury.

249. It is necessary for the prosecutor to identify the key fact of which a PCBU was aware in order for it to be reasonable for the Court to infer, beyond reasonable doubt, that the PCBU foresaw that its actions might cause death or serious injury. [17] The prosecution must clearly establish the “triggering” knowledge demonstrating that the PCBU did know (as opposed to ought to have known) that there was a possibility that by continuing with its conduct or omitting to take action would give rise to a risk of death or serious injury.

250. The expression “reckless as to the risk to an individual of death or serious injury or illness” means that a PCBU has foresight of the possibility that an individual would die or be seriously injured, not merely the foresight of the possibility that a person may be exposed to the possibility of death or serious injury.

The s 28(b) duty – duty of a worker to take reasonable care

252. Section 28 of the Act provides:

While at work, a worker must--

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

253. I determined the scope of the s 28(b) duty at length in Safework NSW v Scharfe [2021] NSWDC 260. The parties have not put in issue the consideration of that issue set out in [62]-[96] of that judgment. What follows are my conclusions set out in Scharfe on the scope of the s 28(b) duty.

254. A worker’s duty under s 28(b) of the Act is to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, is a duty not to expose those persons to a risk of injury as a result of the immediate conduct of the worker.

255. The primary duty owed by a PCBU pursuant to s 19 of the Act is to eliminate or minimise risks to a person’s health and safety if that is reasonably practicable to do so. The s 28(b) duty is intended to be complimentary to the s 19 duty, by imposing obligations on a worker to assist a PCBU to ensure safety, so far as that is reasonably practicable, by co-operating in the elimination or minimisation of risk.

256. The scheme of the Act is to ensure the health and safety of workers and other persons by the elimination or minimisation of risks to health and safety. It is clear from the scheme of the Act that it is intended to impose obligations on PCBUs, workers and others to act before a risk arises and well before a person could be injured or killed.

257. The extrinsic materials stated:

(a) that the worker’s duty would be to exercise reasonable care that his or her acts or omissions did not expose any person to a risk to their health and safety; (b) the scope of a worker’s responsibility is proportionate to the control that the worker is able to exercise over the work activities and the work environment; [18] and (c) a worker’s ability to take active measures for the health and safety is limited to their immediate conduct in acting in their role within the PCBU. [19]

258. It is clear that a PCBU’s duty to ensure safety by eliminating all risks, if that is reasonably practicable to do so, does not apply to a worker. The s 28 duty is not a duty “to ensure health and safety” and accordingly ss 17 and 18 do not apply to it. It follows that, a worker does not have to exercise reasonable care to eliminate or minimise all risks to another person at a workplace. The s 28 duty requires that a worker must not expose a person to a risk to their health and safety arising from their own acts or omissions.

259. The standard of the s 28 duty is to exercise reasonable care and is a lower standard than that owed by a PCBU to ensure the health and safety of a worker, in so far as that is reasonably practicable.

260. The standard of the s 28 duty to exercise reasonable care is also lower than that owed by an officer of a PCBU pursuant to s 27 of the Act, because it is a duty to “ensure” that the PCBU complies with its duty or obligation under the Act. Section 27 of the Act relevantly provides:

(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

…

(5) In this section,

"due diligence" includes taking reasonable steps--

(a) to acquire and keep up-to-date knowledge of work health and safety matters, and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

Example--: For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include--

• reporting notifiable incidents,

• consulting with workers,

• ensuring compliance with notices issued under this Act,

• ensuring the provision of training and instruction to workers about work health and safety,

• ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e).

261. An “officer” of a PCBU is defined in s 4 of the Act to mean an officer within the meaning of s 9 Corporations Act 2001, which includes:

…a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation… [20]

262. It follows that a worker’s duty does not include the duty to ensure that the PCBU complies with its duty or obligation under the Act or has in place the means to do so.

263. The lower standard of care reflects that a worker has less influence and control over the system of work than that of a PCBU, because a PCBU implements the system of work, provides the plant and determines the conditions in which the workers will work.

264. It also reflects that a worker has less authority over a PCBU than an officer of a PCBU and is usually not in a position to authorise the expenditure of funds on safety equipment or to devise and implement safe systems of work.

265. Section 28 of the Act recognises that a worker may put themselves or others at risk by their acts or omissions at work, and a worker whose conduct demonstrates a lack of care or attention or does not comply with a work safety rule or who does not cooperate in safety matters will be in breach of the duty.

266. An element of the s 32 offence by a breach of s 28 is that the prosecution must prove that the worker has exposed the person to a risk of death or serious injury.

267. The phrase “reasonable care” is not defined in the Act but has an established meaning at common law. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 Mason J (as his Honour then was) stated:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man is response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

Reasonable foreseeability

268. In Shirt, Mason J went on to state at 48 that:

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.

269. Mason J cited with approval the comments of Glass JA in the Court of Appeal to the effect that the test was “undemanding” and that the risk may be described as “only a remote possibility”.

270. The correctness of Mason J’s description of the reasonable foreseeability test has been called into question, but not authoritatively determined; in State of New South Wales v Fahy (2007) 232 CLR 486. The High Court declined to reconsider Shirt.

271. In Tame v New South Wales (2002) 211 CLR 317 at [97] McHugh J approved the text of Professor Fleming in the 1957 edition of The Law of Torts, as follows:

What are the considerations upon which the law supposes the reasonable man will guide his conduct? Negligence consists in conduct involving an unreasonable risk of harm. Almost any activity is fraught with some degree of danger to others but, if the existence of a remote possibility of harm were sufficient to attract the quality of negligence, most human action would be inhibited. Inevitably therefore, a person is only required to guard against those risks which society recognises as sufficiently great to demand precaution. The risk must be unreasonable, before he can be expected to subordinate his own interests to the interests of the other.

272. McHugh J continued:

Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability… [98]

I think that the time has come when this Court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall…into public disrepute if it produces results that ordinary members of the public regard as unreasonable [101]

Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant’s position would think the risk sufficiently great to require preventive action. This is a matter of judgement after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge. [102]

When it is necessary to determine foreseeability in the duty context, the development of the law of negligence as a socially useful instrument now requires the rejection of the attenuated test of foreseeability propounded in The Wagon Mound (No 2) and adopted by this Court in Shirt. [104]

273. In Seltsam v McNeill [2006] NSWCA 158 Bryson JA said at [36]:

In my opinion questions of reasonable foreseeability and existence of a duty of care are not correctly decided by applying, as if they express a syllogism, Mason J’s references to a risk which is remote, and a risk which is not far-fetched or fanciful. The question of foreseeability must be looked at in the broad. The test of foreseeability is undemanding but there is no basis for treating it as fictional or nominal, or for equating foreseeability with the limits of the imagination, it must be approached as a test which exists in reality and operates within the limits of the reasonable.

274. Reasonable foreseeability of risk is a question of fact that must be determined in light of all of the circumstances prevailing at the time of the act or omission in question: Maloney v Commissioner for Railways (1978) 18 ALR 147 at 148.

The Shirt Calculus

275. The inquiry of what was reasonable to be done is not to be undertaken in hindsight: Vairy v Wyong Shire Council (2005) 223 CLR 426 at [126] (Hayne J); but must be answered prospectively before the incident occurred: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31].

276. The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is also necessary to ask would it have been reasonable for the defendant to take those measures: Neindorf v Junkovic (2005) 80 ALJR 341 at [93] (Hayne J). In other words, the knowledge of how a person actually came to be injured has to be excluded when considering if the defendants were obliged to take the particularised steps set out in the Summons.

Causation

277. The relevant question on causation is whether the act or omission of the defendants was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

278. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

279. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

280. A finding of causation requires a backward-looking analysis of what actually occurred in order to attribute liability for a criminal offence: Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [226] (Cavanagh J).

consideration

Issue 2 In relation to the Category 1 offences, does the evidence establish the fault element of the offence that the relevant defendants were either:

(a) grossly negligent, or

(b) reckless to the risk to an individual of death or serious injury?

281. It is convenient to deal with the corporate defendants collectively on this issue. For present purposes, I will assume that the Limited Partner was a PCBU and owed a duty under ss 19 and 20 of the Act.

282. I note from the outset that the pleadings relating to the Category 1 offences were almost identical to the pleadings for the Category 2 offences. There was only minimal averment to the differences between the elements of the offences, by repeating some of the words in s 31. However, the particulars of the breach of s 31 were for all practical purposes identical to the particulars of the breach of s 32.

Preliminary issue

283. The prosecutor submitted that the fault element of s 31 of the Act could be established by proving:

(a) gross negligence; or (b) recklessness; or (c) both gross negligence and recklessness.

284. In a preliminary ruling in this matter, I was satisfied by reference to the language of s 31 of the Act that the offence could be proven by the prosecutor establishing either gross negligence or recklessness and that they could be argued in the alternative. I accept that hypothetically a prosecutor in an appropriate case may be able to establish both fault elements, for example where a PCBU did nothing to control a known and serious risk and it could be inferred that the PCBU turned its mind to that risk but did nothing.

285. For the reasons that follow, I am not satisfied that the prosecutor has established either fault element and in those circumstances it is inappropriate and unnecessary to express a concluded view on this preliminary issue.

Background findings

286. Before turning to deal with each of the fault elements I will set out a number of background findings.

287. The corporate defendants accepted that when the workers were on the roof to clean the solar panels they were exposed to the risk of death or serious injury as a result of falling off the unprotected edge of the roof or through one of the skylights. The corporate defendants also accepted that the workers were exposed to those risks without reasonable excuse.

288. Jayanthan, as directed by Michael, gave instructions to the workers to undertake the work in such a way that the risk of a fall off the edge of the roof or through a skylight would be mitigated. In addition, Jayanthan provided some supervision to ensure that the work was carried out in accordance with the instructions.

289. The risks to which the workers were exposed need to be considered separately because the instructions given mitigated the different risks to different degrees.

The risk of falling off the roof

290. The workers were instructed not to approach within 2m of the edge of the roof and to clean the solar panels from between the rows of solar panels. I accept the evidence of Mr Velusamy and Mr Ponnuthurai that they conducted the work in accordance with those instructions and the evidence of Jayanthan that he observed them to comply. The effect was that the workers were protected from falling over the edge of the roof by a physical barrier in the form of the rows of solar panels. The high side of the solar panels was about 600mm from the surface of the roof and by remaining between the rows of solar panels the workers were provided with a significant degree of protection from falling over the edge of the roof. When cleaning the northern solar panels, it would have been necessary to approach the western and/or the eastern edges of the roof when the workers had finished cleaning a row of solar panels and needed to manoeuvre in between the next rows of solar panels. However, the instruction not to go within 2m of the edge of the roof would have reduced the risk at those times which occupied a short period of time in the context of the cleaning operation.

291. The cleaning of the southern solar panels may have required the workers to approach the southern edge of the roof on a number of occasions during the cleaning operation, because the southern solar panels were installed in north-south orientation. However, it was also possible that the workers could have cleaned the solar panels working away from the southern edge of the roof, thereby minimising their exposure to the southern edge. Because the incident occurred shortly after the workers started cleaning the southern solar panels, there is no evidence as to the method the workers adopted. However, had they complied with the instructions to work between the solar panels and not to go within 2m of the edge of the roof, the risk would have been substantially reduced. The bulk of the work involved in the cleaning process would have taken place away from the edge of the roof, where it was highly unlikely that a worker could fall over the edge.

292. There remained a number of residual risks (the residual risks) including:

(a) that a worker could trip over the ridges in the roof sheets, other fixtures on the roof or the equipment they were using such as the hose; (b) that a worker could slip on the wet surface of the roof; (c) that a worker could become engrossed in their work and inadvertently or negligently fail to comply with the instructions; and (d) that a worker could deliberately disobey the instructions.

293. In all of the circumstances, I am satisfied that the risk to the workers falling off the edge of the roof when cleaning the northern solar panels was low. The risk of falling off the edge of the roof when cleaning the southern solar panels was slightly higher, but I still consider it to be low. The effect of the instruction to work from between the rows of solar panels and 2m away from the edge had a very substantial mitigatory effect on the risk of falling off the edge of the roof.

The risk of falling through a skylight

294. The northern skylights were installed close to the wall of the plant room and behind the last row of solar panels, with the high side of the solar panel installed closest to the skylights. It was not necessary for the workers to traverse back and forth past the northern skylights to undertake the work of cleaning the solar panels. It remained possible that the workers could walk past the northern skylights from time to time, they could be and probably were easily avoided.

295. The southern skylights were installed close to the wall of the plant room but were by comparison, out in the open. There was a gap of about 2600mm between the southern skylights and the end of two rows of the southern solar panels. It was probably necessary for the workers to pass by the southern skylights on a few occasions in the course of cleaning the southern solar panels, but there was room to do so safely, absent an accidental fall.

296. Having been identified as a source of danger and a “no-go” area, the skylights could be easily avoided. This was particularly the case for the northern skylights and less so for the southern skylights.

297. The residual risks equally applied to the risk of falling through a skylight.

298. On Mr Velumsamy’s evidence, the incident occurred on the first occasion that the workers were required to walk past the southern skylights to get to the eastern edge of the southern solar panels to commence cleaning them. At the time of the incident, the eastern skylight (of the southern skylights) was covered by the red and white cover. This probably had the effect of hiding the existence of the eastern skylight, but not the skylight that Mr Shanmugalingam fell through.

Gross negligence

299. The relevant principles are set out at [224]–[231] above, and I will not repeat them.

300. In this case the objective test for gross negligence is to be judged by reference to the corporate defendants. The pleaded risk arose from conduct that was not an ordinary part of the business of the corporate defendants. They did not have specialised knowledge of risk management or that of a reasonable person conducting a business that regularly involved working at heights. The corporate defendants did not have knowledge of the specialist guidance material published for the assistance of PCBU’s whose business involved working at heights, such as PCBU’s installing solar panels on roofs.

301. The task of cleaning the solar panels was conducted infrequently.

302. I am satisfied that the corporate defendants knew that there was a risk of a worker falling off the edge of the roof or through one of the perspex skylight covers and the instructions provided by Michael to Jayanthan for the workers to stay away from the unprotected edge and the skylights was intended to mitigate against those risks.

303. I am satisfied that the corporate defendants knew that a fall off the edge of the roof or through the skylight would likely result in the death or serious injury of a worker, because of the distance to the ground below. That risk and its consequences were obvious.

304. Notwithstanding that the likelihood of a fall was low, the consequences of a fall were serious and the corporate defendants, in the place of an employer or a person with control of the system of work, were required to take some action to mitigate against the risks.

305. The corporate defendants did not have regard to the available guidance material to formulate appropriate control measures. There was a considerable volume of guidance material that was readily available. The corporate defendants did not comply with regulations relating to the possibility of a fall. The corporate defendants did not ask the external safety consultant, CSA, to assess the task of cleaning the solar panels.

306. The corporate defendants should have known about the risks and the ways to control them from the available guidance material or through advice from CSA. The corporate defendants should have known that the administrative controls put in place through the instructions, provided the lowest level of protection for the workers and that they could be easily defeated. The corporate defendants should have appreciated the residual risks.

307. The prosecutor submitted that the corporate defendants conduct fell well below the standard to justify a finding of gross negligence by reference to the size of the turnover of the business, the inexperience of the workers and managers in working at height and the failure to refer to the available guidance material.

The risk of falling off the roof

309. The installation of a permanent guardrail around the edge of the roof was an expensive step to take to eliminate what was a fairly minor risk, for the infrequent task of cleaning the solar panels.

310. I am satisfied that the instructions to stay 2m away from the unprotected edge and to work from between the rows of solar panels greatly reduced the risk of a fall over the edge of the roof. I am satisfied that the actions of the corporate defendants in requiring the workers to work in proximity to the unprotected edge of the roof fell short of the standard required by an employer or a person with control of the system of work, but not substantially below that standard.

311. Further, if the instructions to stay away from the unprotected edge and to work from between the solar panels were followed, which they were, the chance that the workers would be exposed to a risk of death or serious injury through a fall off the unprotected edge was greatly reduced and not high.

312. I am not satisfied beyond reasonable doubt that by requiring the workers to work in proximity to the unprotected edge of the roof in accordance with the instructions, that the corporate defendants conducted themselves with gross negligence.

The risk of falling through the skylight

313. The risk of a fall through the northern skylights was minimal because they were positioned behind a row of solar panels and it was not necessary for the workers to traverse past them regularly while cleaning the northern solar panels.

314. The risk of a fall through the southern skylights was higher, but not much higher. The southern skylights were positioned in the open with a 2600mm gap between them and the end of two rows of the southern solar panels. The corporate defendants should have known that it was necessary for the workers to walk past the southern skylights when accessing the eastern edge of the roof and when cleaning the rows closest to the southern skylights.

315. The corporate defendants should have known that a simple and inexpensive step to eliminate the risk included the provision of a permanent cover over the skylights.

316. The corporate defendants should have known that the residual risks remained.

317. If the workers followed the instructions given to stay away from the southern solar panels, the risk of falling through one of them was greatly reduced. The corporate defendants should have known that the residual risks remained.

318. I am satisfied that the actions of the corporate defendants in requiring the workers to work in proximity to the skylights, with perspex covers that would not support the weight of a person, fell short of the standard required by an employer or a person with control of the system of work, but not substantially below that standard.

319. If the workers had complied with the instructions given to stay away from the skylights, the risk of death or serious injury was present, but not high.

320. I am not satisfied beyond reasonable doubt that by requiring the workers to work in proximity to skylights in accordance with the instructions, that the corporate defendants conducted themselves with gross negligence.

Conclusion on gross negligence

321. Taking into account all of the evidence, the corporate defendants’ actions were negligent, but I am not satisfied beyond reasonable doubt that they rose to the standard of gross negligence.

322. I am not satisfied beyond reasonable doubt that the prosecutor has established that any of the corporate defendants engaged in the conduct with gross negligence.

Recklessness

323. The relevant principles are set out at [232]–[251], above and I will not repeat them.

Social utility

324. The operation of the business by the Partnership through the work of the workers engaged by it, was an activity involving considerable social utility. The Partnership provided a source of employment for a large number of unskilled workers with limited English skills, in an area of Sydney close to where they lived and was involved in the production of food products. The installation and use of the solar panels by the business was a socially and environmentally responsible endeavour, and the task of cleaning the solar panels was undertaken to improve their efficiency.

Knowledge

325. The pleadings did not contain any particulars of the individual or individuals who had the requisite knowledge to prove recklessness.

326. As the case unfolded it became apparent that the prosecutor relied on the subjective knowledge of Michael and/or Jayanthan to establish that the corporate defendants acted recklessly. The prosecution relied on s 244 of the Act to prove that either Michael and/or Jayanthan held the requisite intention for each of the corporate defendants.

327. I pause to note that Michael and Jayanthan were employees of the Labour Hire Company and agents with express authority of the General Partner. The prosecutor did not articulate on what basis it contended that Michael and/or Jayanthan were employees or agents of Limited Partner, other than to rely on its direct liability argument which is dealt with at [377]-[400] below.

328. An issue arose in final submissions as to whether or not the knowledge of Michael and Jayanthan could be aggregated to prove that the corporate defendants acted recklessly. I do not need to decide this point in this case because the knowledge of Michael and Jayanthan was very similar, except for one issue.

329. Jayanthan placed the red and white cover on the roof over one of the southern skylights. I am not satisfied on the evidence, that Michael knew that the red and white cover had been placed over one of the southern skylights to stop a water leak in the roof of the Shop. Jayanthan’s evidence was that it may have been Michael or Jason who instructed him to fix the leak, but he could not remember who it was. Jason and Charles both denied any knowledge of the leak, a request to Jayanthan to fix it, and the installation of the red and white cover. There were other managers and individuals who worked for the Group that could have and did provide instructions to Jayanthan to perform maintenance tasks at the various premises. I understood Jayanthan’s evidence to be that he could not remember who asked him to fix the leak and when he was asked to nominate an individual who asked him to fix it, his evidence was an exercise in speculation.

330. I am not satisfied on the evidence that Michael knew that the red and white cover had been placed over one of the southern skylights to stop water leaking through the roof of the Shop and that it was a potential source of danger by obscuring sight of the hazard posed by the skylight underneath it.

331. Michael could not be called as a witness for the prosecution, because the prosecutor elected to run a joint trial. I rejected the tender of Michael’s interview with the SafeWork Inspectors on the same basis and because he could not be cross-examined by the corporate defendants.

332. From the instructions given by Michael to Jayanthan, I infer that Michael knew that there was a risk that a worker could fall off the edge of the roof or through the perspex cover of a skylight when cleaning the solar panels on the roof of the Shop. I would also infer that Michael directed Jayanthan to give the instructions to the workers to mitigate against those risks. Michael knew that the solar panels had been cleaned on previous occasions, without incident. I infer from that evidence that he believed that the work could be performed safely if the instructions were followed. There was no evidence that Michael had any knowledge of the relevant guidance material or that he had appreciated the residual risks. Contrary to the prosecutor’s submissions, it is not appropriate when assessing recklessness to have regard to what Michael (or the corporate defendants) should have known about the inadequacy of the implemented control measures, ie the instructions. I am unable to infer from the evidence that Michael knew that by requiring the workers to clean the solar panels in accordance with the instructions, that there was a possibility that the workers were being put at risk of death or serious injury.

Conclusion on recklessness

335. I am not satisfied beyond reasonable doubt that the prosecutor has established that the corporate defendants were reckless to the risk to the workers of death or serious injury.

Conclusion on Issue 2

336. I am not satisfied beyond reasonable doubt that the prosecution has proven the fault element of the Category 1 offences, against any of the corporate defendants.

Issue 3 Did the Limited Partner owe a health and safety duty? The sub-issues are:

(a) Was the Limited Partner conducting a business or undertaking?

(b) Did the Limited Partner engage the workers and thereby owe a health and safety duty under s 19(1) of the Act?

(c) Did the Limited Partner have the control of the workplace and thereby owe a health and safety duty under s 20 of the Act?

337. The prosecution must establish beyond reasonable doubt sub-issue (a) and one of sub-issue (b) or (c), for me to be able to find that the Limited Partner owed a health and safety duty under the Act, which is an essential element of each of the offences it has been charged with.

Was the Limited Partner conducting a business or undertaking?

Consideration

338. The resolution of sub-issue (a) depends on the application of the definition PCBU contained in s 5 of the Act to the circumstances of the Limited Partner.

339. Ultimately, whether or not a person is conducting a business or undertaking involves questions of fact.

340. It was common ground that the Partnership operated the business of the Shop and the Factory. The Partnership was constituted through an agreement between the General Partner and the Limited Partner, and without the Limited Partner’s participation the Partnership could not exist or operate the Partnership business. The Partnership Deed states that the Limited Partner was a 99% owner of the Partnership business.

341. Since its inception the Partnership has been conducted for profit, but no distributions had been made to either partner, with a view to retaining the profits in the business in accordance with the ATO’s treatment of limited partnerships. It can be accepted that the General Partner and the Limited Partner have been trading without an intention to draw profit from the business, but that does not exclude them from the definition of a PCBU.

342. I am satisfied that the Limited Partner entered into the Partnership together with the General Partner with a view securing the benefit of favourable taxation treatment afforded to limited partnerships by the ATO and the asset protection advantages afforded to limited partners by the Partnership Act.

343. Section 5(2) provides that a business or undertaking conducted by a person includes a business or undertaking conducted by a partnership.

344. Section 5(3) provides that if a business is operated by a partnership (other than an incorporated partnership) a reference in the Act to “a person conducting the business or undertaking is to be read as a reference to each partner in the partnership”. [21]

345. For the purposes of the Act, the language of s 5(3) read in context with s 5(2) means that:

(a) a person can conduct a business or undertaking through a partnership; and (b) the partners of a partnership operate only one business or undertaking, that is “the business or undertaking”.

346. I accept the defendants’ submission that s 5(3) of the Act clarifies that the reference to a “person” in the Act does not include a partnership. In other words, the duties imposed by the Act are imposed on corporations or individuals. It follows that a partnership (other than an incorporated partnership) cannot be guilty of an offence under the Act. This distinguishes the Act from other regulatory schemes that impose criminal liability on partnerships. [22]

347. In this case the evidence is plain that the Partnership operates one business manufacturing and supplying meat products. The agreement of both partners is essential for the existence of the Partnership and its ability to operate the business. This coincides with the general law understanding of the nature of a partnership, that it involves the joint conduct of a business. [23] Further, it also coincides with the general law proposition that a silent partner is involved in the joint conduct of the business. [24]

348. The evidence demonstrates that the partners played different roles in that business. The General Partner was solely responsible for the management, conduct and operation of the Partnership business including the engagement and direction of workers and the management and control of the Shop as a workplace and that the Limited Partner did not take any steps to further the Partnership business.

349. The Limited Partner through clause 11.2 of the Partnership Deed agreed to forego any role in the management, conduct or operation of the Partnership business and the contemporaneous evidence proves that it did not do so.

350. Taking into account all of the evidence I am satisfied that:

(a) the Partnership conducted a business of manufacturing and selling meat products in accordance with cl 4.1.1 of the Partnership Deed, and (b) by operation of s 5(3) of the Act a reference to a person conducting that business for the purposes of the Act is a reference to both the General Partner and the Limited Partner.

351. This construction of s 5(3) of the Act is consistent with the purposes of the Act. The Act imposes a duty on a person conducting a business or undertaking to ensure, so far as reasonably practicable, that the health and safety of individuals “is not put at risk from work carried out as part of the conduct of the business or undertaking”: Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428 at [2] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). Section 16 of the Act provides that duties imposed by the Act may be imposed on more than one person, with the intention of providing overlapping responsibility for the safe conduct of work as part of all PCBUs involved.

352. I am satisfied beyond reasonable doubt that the Limited Partner was a person conducting the business of the Partnership and thereby a PCBU.

Did the Limited Partner engage the workers or cause them to be engaged and thereby owe a health and safety duty under s 19(1) of the Act?

Consideration

353. Having decided that the Limited Partner was a person conducting the Partnership business, the Limited Partner owes a s 19(1) duty if it engaged the workers or caused them to be engaged.

354. Recent decisions of the High Court have resolved that the relationship between individuals undertaking work for the benefit of others must be assessed by reference to the contractual terms between the parties rather than the multi-factorial test previously preferred: WorkPac Pty Ltd v Rossato [2021] HCA 23, Construction Forestry Maritime Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

355. The evidence contained in the contemporaneous primary documents was that the workers were employed by the Labour Hire Company and placed to work for companies within the Pendle Ham and Bacon Group, including the General Partner. In relation to the operation of the Factory and the Shop, the workers were paid wages by the Labour Hire Company. The General Partner paid the Labour Hire Company for the supply of workers to perform work in the Factory and the Shop.

356. The relevant contracts that existed were between:

(a) the workers and the Labour Hire Company (the employment contracts); and (b) the General Partner and the Labour Hire Company (the labour hire contract).

357. There was no contractual relationship between the workers and the Limited Partner.

358. The Labour Hire Company admitted that it owed a s 19(1) duty to the workers. The evidence supports that the workers were engaged by the Labour Hire Company as employees.

359. The General Partner admitted that it owed a s 19(1) duty to the workers. It follows that the General Partner admitted that it either caused the workers to be engaged, or that it directed or influenced their activities. The definition of “worker” in s 7(1)(e) of the Act includes “an employee of a labour hire company who has been assigned to work in the person’s business or undertaking”. For the reasons given, s 5(3) read in context refers to one business being operated by the General Partner and the Limited Partner, which would extend the reference to person in s 7(1)(e) to include a reference to the Limited Partner. Michael was assigned to work for the General Partner as a manager. I am satisfied that when he gave the instructions to workers to perform work in the Factory or the Shop that he did so on behalf of the General Partner consistent with its obligations in clause 11.2 of the Partnership Deed to manage, conduct and operate the Partnership business.

360. The work undertaken by the workers in the Factory and the Shop was performed at the request of the General Partner and at the expense of the General Partner, consistent with its obligations in clause 11.2 of the Partnership Deed to manage, conduct and operate the Partnership business.

361. The cost incurred by the General Partner for the labour hire contract and the revenue generated as a consequence of the work performed by the workers was recorded as the income and expenditure of the Partnership in the financial statements of the Partnerships required to be kept by clause 10 of the Partnership Deed.

362. In R v ACR Roofing Pty Ltd (2004) 11 VR 187, the Victorian Court of Appeal decided that the term “engaged” has a number of meanings according to the context in which it is used. In the legislation, “engaged” was not used lightly and it was clearly intended to have a meaning different to the word “employ” that was also used in the legislation. The definition of “engage” includes “to secure or obtain the services of” whether or not there is some contractual arrangement between the provider of the services and the person who makes use of them (Ormiston JA).

363. The phrase “cause to be engaged by” is a wider concept by reference to the ordinary meaning of those words.

364. By clause 11.2 of the Partnership Deed the Limited Partner agreed to cede the management, conduct, and operation of the Partnership business to the General Partner. In so doing, it intended that the General Partner would engage workers to carry out work for the Partnership business to permit it to operate, although it may not have known exactly how those workers would be engaged. Further, the Limited Partner was aware from the operation of the Partnership business from 2015 onwards that the General Partner hired workers from the Labour Hire Company to perform work in furtherance of the Partnership business and the Limited Partner acquiesced in that course.

Did the Limited Partner have the control of the workplace and thereby owe a health and safety duty under s 20 of the Act?

Consideration

367. The evidence contained in the contemporaneous primary documents and confirmed by Ms Zvirblis was that the General Partner paid the rent and outgoings for the Shop. The General Partner also paid for the installation of the solar panels. After the incident, the General Partner paid for the permanent covers and permanent guardrail on the edge of the roof to be installed. This was consistent with the General Partner’s obligations in clause 11.2 of the Partnership Deed to manage, conduct and operate the Partnership business.

368. Jayanthan was employed by the Labour Hire Company and assigned to work for the General Partner. In the course of his work, he performed maintenance tasks at the Shop for the General Partner at the request of managers giving instructions on behalf of the General Partner.

369. The General Partner admitted that it had the management and control of the Shop as a workplace.

370. There was no evidence that the Limited Partner acted in any way to manage a workplace of the Partnership.

371. By clause 11.2 of the Partnership Deed the Limited Partner agreed to cede the management, conduct, and operation of the Partnership business to the General Partner. In so doing, it intended that the General Partner would take all steps necessary to operate the Partnership business from the principal place of business. The General Partner entered into a lease with Dubavo and Timaz and paid rent for the Shop and the Factory. The General Partner occupied and exercised control over the Shop on behalf of the Partnership and in order to conduct the Partnership business.

372. For the reasons given, the reference to a PCBU in s 20 is to be read as a reference to the business of the Partnership which was conducted by both the General Partner and the Limited Partner.

373. I am satisfied beyond reasonable doubt that the Limited Partner owed a s 20 duty to the workers.

Issue 4 If the answer to (3) is yes, was it reasonably practicable for the Limited Partner to take the steps set out in [11] of the relevant Summons?

374. Having decided that the Limited Partner owed a duty under ss 19(1) and 20 of the Act, it is now necessary to determine if it breached those duties by failing to take the steps set out in [11] of the Summons.

375. The resolution of Issue 4 involves the determination of:

376. The prosecutor’s direct liability argument;

377. The construction of s 16(3) of the Act;

378. The scope of operation of s 67 of the Partnership Act;

379. Whether the pleaded steps were reasonably practicable by application of s 18 of the Act.

The prosecutor’s direct liability argument

376. The prosecutor contended that the finding that the Limited Partner was a PCBU imposes a direct criminal liability for the offences on it, for the acts and omissions of the General Partner by operation of s 10 of the Partnership Act and the law of agency. For the reasons that follow, I reject the prosecutor’s direct criminal liability argument.

377. The prosecutor’s argument misconceives the relevant provisions of the Partnership Act and is contrary to authority.

378. Section 10(1) of the Partnership Act provides:

Subject to subsection (2), where by any wrongful act or omission of any partner in a firm other than an incorporated limited partnership acting in the ordinary course of the business of the firm, or with the authority of the partner's co-partners, loss or injury is caused to any person not being a partner of the firm, or any penalty is incurred, the firm is liable therefore to the same extent as the partner so acting or omitting to act.

379. Contrary to the prosecutor’s argument, s 10(1) of the Partnership Act does not make a partner jointly and severally liable, vicariously or otherwise for a criminal penalty incurred by another partner, because the criminal liability of partners is personal and the where criminal proceedings are brought against more than one partner, the elements of the offence must be proved against each of them individually: Deloitte Touche Tohmatsu *(*A Firm) v Sadie Ville Pty Ltd as trustee for the Sadie Ville Superannuation Fund [2020] FCAFC 23 at [49] and [213] and Riley v Director of Public Prosecutions [2017] 1 WLR 505 at [33]. The effect of s 10 of the Partnership Act is to make the other partners liable for the penalty, [25] not for the offence: Deloitte at [215] and Strother v 3469420 Canada Inc [2007] 2 SCR 177. Section 10 of the Partnership Act is concerned with satisfying debts and liabilities for which a partnership becomes liable, it does not operate to impose criminal liability where none has otherwise been established: Riley at [34].

380. This is especially so when the offence requires the prosecutor to prove mens rea: Deloitte at [59] and Riley at [26]. For the reasons set out above, the s 31 offences pleaded against the Limited Partner require proof of intention, and this is sufficient to reject the prosecutor’s direct liability argument in relation to those offences.

381. In Deloitte, the Full Court of the Federal Court also rejected the argument that Clode v Barnes [1974] 1 WLR 544 and Collins v Poole (1977) 2 TPC 173 were authority for the proposition that partners were vicariously liable for strict liability offences committed by other partners. For the reasons that follow, I respectfully agree with the Full Court’s conclusion.

382. In Clode v Barnes*,* two partners, Mr Thomas and Mr Clode, operated a used car dealership in partnership. Mr Thomas was responsible for selling cars and dealing with customers and Mr Clode was responsible for administration and did not deal with customers. Mr Thomas told the customer that the engine in the motor vehicle on the lot was new and had only done 2,000-3,000 miles, which was not true. Mr Clode had no knowledge or means of knowledge of the false trade description given to the buyer by Mr Thomas but accepted that it was conveyed. Section 1 Trade Descriptions Act 1968 (UK) prohibited the supply of a motor vehicle with a false trade description. Mr Clode was charged with contravening s 1. The Court of Appeal decided that (a) the offence was a strict liability offence and (b) the partners were joint suppliers of the motor vehicle and thus were both responsible for the supply of the motor vehicle with a false trade description.

Clode v Barnes is not … authority for the broad proposition that where one partner is found to have committed a strict liability offence, that partner’s partners are “automatically” guilty of the same offence. Nor, in my opinion, is it authority for the equally broad proposition that criminal acts carried out by one partner in the course of the partnership’s business can always be attributed to the other partners; that the other partners will always be considered to also have engaged in those criminal acts. The critical finding in Clode v Barnes was simply that, on the particular facts of that case, Mr Thomas and the defendant jointly sold the car to the customer and therefore jointly committed the relevant offence as was alleged. To the extent that the decision in Clode v Barnes has any precedent value, it should essentially be confined to its own fairly narrow set of facts and circumstances.

384. At [223] Markovic and O’Callaghan JJ agreed that the critical aspect of Clode v Barnes was that the offence was construed as being capable of being jointly committed by the partners. Further, their Honours noted that the Court of Appeal was not required to consider s 24(1) of the Act which provided a defence to a defendant who could prove that the commission of the offence was due to the act or default of another person. The availability of such a defence detracted from the general proposition.

385. Collins v Poole was a decision of Dey J of the Industrial Commission of New South Wales (IRC) relating to an offence under s 32 Consumer Protection Act 1969. The facts were similar to Clode v Barnes. A motor vehicle was offered for sale with a sign that falsely represented the mileage at 27,000 miles. There was no evidence linking Mr Collins with the false statement, although he did have a conversation with his partner about the mileage of the vehicle. Mr Collins was convicted and fined by a magistrate and appealed to the IRC.

386. The elements of the s 32 Consumer Protection Act 1969 offence were:

(a) that the accused published or caused to be published a statement; (b) the statement was intended or apparently intended by the accused or any other person to promote the sale of any good; and (c) that the statement was false or misleading in a material particular.

387. Section 32(3) Consumer Protection Act 1969 provided that the accused was deemed to know the falsity of the statement unless they proved that they had taken reasonable precautions and had reasonable grounds to believe that the statement was true and they had no reason to suspect it was false or misleading.

388. Dey J dismissed the appeal and upheld the conviction. There are a number of problematic findings in the judgment. First, his Honour relied on Clode v Barnes in finding that the partners were joint suppliers of the vehicle, notwithstanding that “supply” was not an element of the s 32 offence. Second, his Honour found that there was “joint and several liability” for a wrongful act that occurred in the ordinary course of the firm’s business, without explaining the basis for that conclusion. Third, his Honour decided that the offence was an absolute liability offence, when the offence required proof of knowledge that the statement was false or misleading, notwithstanding that there was a deeming provision to that effect and a reversal of the onus of proof on the issue.

389. In Deloitte at [65], Wigney J decided that Collins v Poole was not authority for the proposition contended for in [381] above and by reason of the deficiencies in reasoning referred to in [388] that it should not be followed. I respectfully agree with that analysis.

390. As was demonstrated in Deloitte, a partner’s liability for a strict liability offence depends not only on their designation, but also on in what circumstances a duty is imposed on a person with that designation. In that case, a partner of Deloitte was appointed to conduct an audit report of a company to be included in a prospectus. Section 324AB Corporations Act 2001 *(*Cth) provides that the appointment of a firm as an auditor, is an appointment of all registered company auditors in the firm. Section 307A(2) Corporations Act 2001 *(*Cth) imposes an obligation on the “lead auditor” [26] to ensure that the audit is conducted in accordance with the auditing standards, which is enforceable through the creation of a strict liability offence. [27] In Deloitte, the Full Court of the Federal Court rejected an argument that the partners of Deloitte who were registered company auditors but not involved in the audit (the uninvolved partners) were at risk of prosecution for the offence, because it could not be demonstrated that any of them was a “lead auditor” within the definition of that term.

391. The prosecutor’s direct liability argument also fails to adequately differentiate between ordinary partnerships and limited partnerships. Limited partnerships developed from an institution known as “partnership en commandite”, in which the nobility who could not engage directly in trade [28] would invest in commercial ventures through trusted merchants on the understanding that without being a named party to the venture, they would receive a share of any profits without accepting any liability for losses beyond the amount of their contributions. [29]

(a) the unlimited liability of every partner. Section 60 of the Partnership Act limits the liability of a limited partner to the extent of its contribution recorded in the register; (b) the implied authority of each partner to bind the firm and its co-partners in all matters in the ordinary scope of the partnership business. Section 5(2) of the Partnership Act provides that each general partner is an agent of the firm and of the other general partners for the purpose of the business of the partnership. Section 67(1) of the Partnership Act provides that a limited partner does not have the power to bind the partnership; and (c) the right of each partner, subject to any contrary agreement, to take part in the management of the business. Section 67 of the Partnership Act provides that a limited partner must not take part in the management of the business of a limited partnership. [30]

393. The partners’ rights in a limited partnership can be varied by agreement. [31] In the present case, the parties agreed in clause 11.2 of the Partnership Deed that the General Partner would “have the sole and complete charge of the management, conduct and operation of the Partnership business in all respects and in all matters and shall have the power on behalf of the Partnership to bind the Partners and the Partnership as the unlimited agent of the Partners and the Partnership”.

394. In clause 11.2 of the Partnership Deed, the Limited Partner agreed to forego substantially more than just management of the partnership business to the General Partner as required by s 60 of the Partnership Act. Further, the contemporaneous business records demonstrate that the partners have structured their affairs in accordance with clause 11.2 and I am satisfied that in the relevant period the General Partner had sole and complete charge of the management, conduct and operation of the Partnership business in all respects and in all matters.

395. In clause 11.2 the Limited Partner has also agreed to permit the General Partner to bind the firm as an unlimited agent and the Limited Partner for all of the functions referred to in clause 11.2. This is an extension of the usual power in s 5(2) of the Partnership Act of a general partner to bind only other general partners of a firm. It has been recognised that in appropriate circumstances that a general partner will have the power to bind a limited partner, but such a power does not usually extend to actions like changing the nature of the Partnership business, unless the limited partner consents. [32] In my view, clause 11.2 evidences that the Limited Partner has provided its unlimited consent for the General Partner to bind the firm and the partners.

396. In contrast, clause 11.8 of the Partnership Deed provides that the Limited Partner has no power to sign for or to bind the Partnership.

397. The effect of the Partnership Deed and the relevant provisions of the Partnership Act, is that the General Partner is liable for any agreement entered into it within the scope of the Partnership business and that it has the authority to apply Partnership funds to satisfy any claim made against it. No question of joint liability arises where there is only one general partner because it alone is liable for partnership debts: In re Barnard: Martins Bank v Trustee [1932] 1 Ch D 269 at 274 (Farwell J).

398. In the present case, there is no need to consider the operation of s 60 of the Partnership Act because the evidence is that there are retained profits of the Partnership that the General Partner can use to satisfy any penalty that may be imposed for the offences if either or both partners are convicted.

399. For the reasons given, I am satisfied that the Limited Partner has not taken part in the management, conduct or operation of the Partnership business. It follows that I am satisfied that the Limited Partner has not taken part in the management of the business contrary to s 67 of the Partnership Act and it remains entitled to the limited liability provided for by the Partnership Act. Whilst that conclusion is of no practical consequence to the liability of the Limited Partner to pay any penalty imposed, the prohibition in s 67 remains relevant to the determination of what steps were reasonably practical for the Limited Partner to take.

The construction of s 16(3) of the Act

400. Section 14 of the Act provides:

A duty cannot be transferred to another person.

401. Section 16 of the Act provides:

(1) More than one person can concurrently have the same duty.

(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3) If more than one person has a duty for the same matter, each person--

(a) retains responsibility for the person's duty in relation to the matter, and

(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

402. As persons conducting the Partnership business, the General Partner and the Limited Partner were required to discharge their duty to the standard required, to the extent that the person had the capacity to control the matter or would have had but for an agreement or arrangement purporting to limit or remove that capacity.

403. Section 16(3) of the Act mandates that a PCBU cannot contract out of their responsibilities under the Act or enter into an arrangement to avoid them, and this promotes the scheme of the Act and its objects.

404. The Limited Partner agreed in the Partnership Deed not to take part in the management, conduct or operation of the Partnership business. [33] Pursuant to that agreement, it has not done so and it has ceded all aspects of the operation of the Partnership business to the General Partner. The Limited Partner had also agreed that it was not entitled to receive any distribution of profit unless the General Partner decided in its absolute discretion that the profits of the Partnership justify it. [34]

405. The Limited Partner had arranged its affairs in that it:

(a) did not have a bank account; (b) did not enter into agreements on behalf of the Partnership; and (c) did not engage workers.

406. The Limited Partner was prohibited by s 67 of the Partnership Act from taking part in the management of the Partnership business, or else it would lose its limited liability: s 67(2) as applied in Johnson v Mackinnon (No 2).

407. Each of the matters referred to in [404]-[406] above, purported to, or did, remove the capacity of the Limited Partner to comply with its obligations under the Act.

408. The word “agreement” in s 16(3) of the Act should be given its ordinary meaning and clearly incudes a reference to a concluded contract such as the Partnership Deed. An agreement between one or more persons can also be inferred from conduct.

409. The word “arrangement” in s 16(3) of the Act on its ordinary meaning is a wider concept than an agreement. In general, it is a consensual dealing between persons that lacks some essential element that would make it a contract: Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd (2007) FCR 321 at [26] (Gray J). In Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 140 CLR 434 the High Court described an arrangement at 444 (Gibbs and Mason JJ, Murphy J agreeing) as follows:

It is, however, necessary that an arrangement should be consensual, and that there should be some adoption of it. But in our view it is not essential that the parties are committed to it or are bound to support it. An arrangement may be informal as well as unenforceable and the parties may be free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it.

410. It is clear from the plain words of s 16(3) of the Act that the Limited Partner cannot rely on the Partnership Deed to contend that it was not responsible for any aspect of the conduct or operation of the Partnership business, including its duties to ensure safety. [35] Similarly, it cannot rely on its agreement to receive conditional distributions of profit as its only means of funding its expenditure on safety.

411. In the present case, the conduct of the Limited Partner and the General Partner, viewed objectively, supports the existence of a legally binding relationship between the parties on the terms contained in the Partnership Deed. In those circumstances, it is not necessary to assess where the agreement stopped and any arrangement began.

412. I now turn to consider if the entry into the limited partnership by the Limited Partner and the General Partner was an agreement or arrangement within the meaning of s 16(3) of the Act.

413. The limited liability of a limited partner is conferred by s 60 of the Partnership Act, on condition of compliance with s 67(1). The content of s 67 cannot be varied by a partnership agreement or consent of the partners: s 67(5) of the Partnership Act.

414. A partnership agreement is not required to establish a limited partnership which is formed on registration: s 50A of the Partnership Act. Any act done in the making of an application for registration of a limited partnership by or on behalf of persons or a partnership does not create a partnership between those persons or partnerships: s 55A of the Partnership Act. In other words, the antecedent agreement of the partners to enter into a limited partnership is ineffective to create a limited liability partnership. Partners cannot simply agree to limit the liability of one partner because that is antithetical to the notion of an ordinary partnership: s 5(1) of the Partnership Act.

415. It follows that partners cannot enter into an arrangement, being a consensual position that falls short of an agreement, to limit the liability of one partner.

416. The registration of the limited partnership was a statutory business structure entered into by the Limited Partner and the General Partner for legitimate commercial reasons. That structure conferred a limited liability benefit on the Limited Partner on condition that it complied with the relevant provisions of the Act, in particular that the Limited Partner must not take part in the management of the business and that it did not have the power to bind the business.

417. I am satisfied that the registration of a limited partnership by the Limited Partner and the General Partner was not an agreement or arrangement intended to remove the Limited Partner’s capacity to comply with its obligations under the Act.

418. I am satisfied that the Limited Partner was entitled to preserve its limited liability conferred by s 60 of the Partnership Act, by complying with the prohibition in s 67.

The scope of s 67 Partnership Act 1892

420. As a starting point, I note that the prohibition in s 67 of the Partnership Act is not absolute. If it is breached, the limited partner becomes liable for the debts of the firm as if it was a general partner for the period in which it takes part in the management of the partnership business. [36]

421. Section 67 of the Partnership Act relevantly provides:

…

(3) A limited partner is not to be regarded as taking part in the management of the business of the limited partnership merely because the limited partner--

(a) is an employee or an independent contractor of the partnership or of a general partner, or is an officer of a general partner that is a corporation, or

(b) gives advice to, or on behalf of, the limited partnership or a general partner in the proper exercise of functions arising from the engagement of the limited partner in a professional capacity or arising from business dealings between the limited partner and the partnership or a general partner, or

(c) gives a guarantee or indemnity in respect of any liability of the partnership or of a general partner, or

(d) participates in any action by other limited partners for the purpose of enforcing their rights or safeguarding their interests as limited partners, or

(e) if authorised by the partnership agreement, participates in general meetings of all the partners, or

(f) exercises any power conferred on the limited partner by subsection (4).

(4) A limited partner or a person authorised by the limited partner may at any time--

(a) have access to and inspect the books of the partnership and copy any of them, and

(b) examine the state and prospects of the business of the partnership and advise and consult with other partners in relation to such matters.

(5) The provisions of this section may not be varied by the partnership agreement or the consent of the partners.

(6) No implication is to be taken as arising from section 67A(3) that a limited partner in a limited partnership is to be regarded as taking part in the management of the business of the partnership merely because the limited partner or a person acting on behalf of the partner does anything in connection with the conduct of that business that is not referred to in that subsection.

422. The definition in s 67(3) is a negative one. It specifies actions that do not amount to taking part in the management of the partnership business. The question of whether an action falls within the management of the partnership business is a question of fact.

423. Commentators have suggested that the dividing line is probably between taking part in the operations of the partnership by actively directing its functions and on the other hand being only concerned with the internal structure or the relationship between the partners. [37] The difference suggested is mirrored in a corporate structure, where a director manages the corporation and a shareholder does not.

424. In R v Newth [1974] 2 NZLR 760 the accused was charged with an offence under s 188(1) Companies Act 1955 *(*NZ) that prohibited an undischarged bankrupt from acting as a director of, or directly or indirectly taking part in or being concerned with the management of a company. In an interlocutory decision to quash the charges, Quilliam J stated at 761:

It must first be observed that the offence created by the section is a very wide one and is plainly intended to limit severely the activities of an undischarged bankrupt in the affairs of a company. I have no doubt that the object of the statutory provision is not the punishment of the bankrupt but the protection of the commercial community and I think it is this principle which points clearly the way in which the section is to be interpreted. It is not, of course, an offence for an undischarged bankrupt to be employed by a company in a minor capacity, for instance, as typist or clerk or on routine duties, but I think the section prohibits such a person from taking any hand in the real business affairs of the company and the expression "concerned in the management" is, in my view, to be regarded in that way, that is, the inquiry should be whether, upon the evidence, the accused took a hand in the real business affairs of the company.

425. In Certain Limited Partners in Henderson PFI Secondary Fund II LP *(*a firm) v Henderson PFI Secondary Fund II LP *(*a firm) [2013] QB 934 the general partner appointed a related company to manage the partnership’s investment portfolio. The claimants, 22 of the limited partners of the firm, sought declarations that they could pursue proceedings against the general partner and the investment manager without taking part in the management of the business of the partnership. Cooke J relevantly decided that:

(a) in so far as the claim alleged a breach of the partnership agreement by the general partner, the limited partners could bring an individual contractual or fiduciary claim against the general partner without taking part in the management of the partnership business, because each claim was a claim of the individual limited partner and not a partnership asset: at [28], and (b) that any claim against the investment manager was a partnership asset and could only be pursued by the general partner on behalf of the partnership because:

(i) the decision to pursue a partnership asset in litigation involved management of the partnership, and (ii) the conduct of litigation on behalf of the firm required the ability to bind the partners, which the limited partners could not do: at [50].

426. The decision of Henderson was followed by the Court of Appeal in Allianz Global Investors Gmb**H v Barclays Bank PLC [2023] 1 All ER (Comm) 20 at [58]-[60] (Phillips LJ, Jackson LJ and Carr LJ agreeing).

427. In Inversiones Friera SL v Colyzeo Investors II LP [2012] Bus LR 1136 Norris J noted that s 6(1) Limited Partnership Act 1907 *(*UK) permitted a limited partner to inspect the books and records of the firm and that by seeking information the limited partner did not become involved in the management of the business. Norris J continued at [23(s)]: [38]

If it expresses to the general partner a view about the performance of the partnership or the strategy or future direction of the partnership or a preference about how a particular asset should be dealt with or a particular liability covered, it does not become “involved” in the management of the partnership. But if [the limited partner] seeks to participate in the decision-making process by requiring notice of individual decisions and the ability to make representations about individual decisions, if it seeks to scrutinise and to comment upon the operational business decisions which [the general partner and investment manager] are taking, then it would become “involved” in the management of the partnership. But the mere fact that the provision of information might enable [the limited partner] to take that course is not a reason for the refusing to provide information to which [the limited partner] is otherwise entitled as partner. [39]

428. In Lindley & Banks at [31-03], the learned author suggests that in the absence of agreement to the contrary in a partnership agreement, the general partner has the power to bind all partners in a limited partnership, notwithstanding that the limited partners may not be consulted or have a mechanism in which to express their views. Thus making it of particular importance that the general partner exercise this power with utmost good faith, because any attempt at consultation with the limited partners might result in their direct or indirect management of the partnership business: citing Harris v Holland [2020] EWHC 3104.

429. Johnson v Mackinnon (No 2) was a case involving the purported formation of a limited partnership to conduct a sports gambling investment business that was not registered by oversight, and therefore found to be an ordinary partnership. At [41], Macfarlan JA (Brereton and Simpson JJA agreeing) described the appellant’s actions of providing her image for advertising purposes, instructing solicitors for the partnership and engaging with one of the investors where she demonstrated a detailed understanding of the scheme, appeared to involve taking part in the management of the business and as a result she would not have been entitled to rely on the limitation of liability in s 60 of the Partnership Act, even if a limited partnership had been registered.

430. In Re Garwood’s Trusts: Garwood v Paynter [1903] 1 Ch D 236 Mr Garwood assigned two-thirds of his share of income from a partnership as part of a divorce settlement with his wife. It was later agreed amongst the partners that Mr Garwood would be paid wages for his work in managing the London branch. In the proceedings, Mrs Garwood contended that she was also entitled to two-thirds of Mr Garwood’s wages. Section 31 Partnership Act 1890 *(*UK) provided that an assignment of a partnership share did not give the assignee any right to interfere in the management or administration of the partnership business. Buckley J decided that the payment of salaries was an act undertaken in the management or administration of the partnership business.

Were the pleaded steps reasonably practicable for the Limited Partner to take?

431. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].

432. In order to find Element 2 established, I must be satisfied beyond reasonable doubt that the Limited Partner failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [9] of the Summons alleging a breach of the s 20 duty and [11] of the Summons alleging a breach of the s 19(1) duty and that those steps were reasonably practicable.

433. This involves the application of s 18 of the Act and is a question of fact.

434. Relying on the direct liability argument, which I have rejected, the prosecutor did not differentiate between what steps were reasonably practical for each of the corporate defendants to take.

435. The pleaded measures that the prosecutor says that the General Partner, the Limited Partner and the Labour Hire Company should have taken to comply with their s 19(1) duty are identical.

436. The pleaded measures that the prosecutor says that the General Partner and the Limited Partner should have taken to comply with their s 20 duty are identical.

437. The General Partner conceded that it breached its s 19(1) duty and its s 20 duty by failing to take the steps set out at [12] and [13] above. The Labour Hire Company conceded that it breached its s 19(1) duty by failing to take the steps as applicable to it in [12] above. Issue 5 concerns whether or not the admitted steps where sufficient to eliminate the pleaded risks and thereby if the further steps were reasonably practicable.

438. The Limited Partner did not make any relevant admissions and accordingly did not to seek to be included in the resolution of Issue 5. The Limited Partner contended that the pleaded steps were not reasonably practical for it to take because of its status as a limited partner and its involvement in the Partnership business. For the reasons given, I have rejected the Limited Partner’s argument to the extent that it was based on the Partnership Deed and the conduct of the partners in operating the Partnership business, because s 16(3) of the Act precludes reliance on those matters.

439. I am satisfied that the Limited Partner was legally entitled to rely on the limited liability provided for by s 60 of the Partnership Act and as a necessary consequence it was prohibited from taking part in the management of the partnership business and could not act in a way to bind the partnership.

440. In summary the pleaded measures required the Limited Partner to:

441. Prohibit the workers from working on the roof until permanent protective covers were installed on the skylights and permanent guard rails were installed on the edge of the roof. [40]

Conclusion on Issue 4

446. I am not satisfied beyond reasonable doubt that the prosecutor has established Element 2 of the s 32 offences pleaded against the Limited Partner.

Issue 5 Noting the admissions of the General Partner and the Labour Hire Company, that they breached their work health and safety duty for the Category 2 offences by failing to take the reasonably practicable steps set out in [12](a)-(c) and [13] above, did the General Partner and the Labour Hire Company breach the health and safety duty owed by them, by also failing to take the steps particularised in the relevant Summonses?

447. Having determined that the prosecutor has failed to prove the fault element of the s 31 offences in relation to the corporate defendants and the duty issue in relation to the Limited Partner, issue 5 is relevant only to the s 32 offences alleged against the General Partner and the Labour Hire Company. [47]

Did the admitted steps eliminate the risk?

448. The General Partner and the Labour Hire Company contended that having admitted that they failed to take the reasonably practicable steps in [12](a)-(c) and [13] above (the admitted steps), that the remainder of the steps pleaded by the prosecutor (the further steps) were not reasonably practicable, because if the admitted steps had been taken both of the pleaded risks would have been eliminated and the further steps were not reasonably practicable because they would not have had a demonstrable impact on safety.

449. The admitted steps would have required the General Partner to prohibit and prevent the workers from working on the roof of the Shop until it installed permanent protective covers over the skylights that could have supported the weight of a person and a permanent guardrail around the edge of the roof. The admitted steps were taken immediately after the incident. The General Partner has conceded that the admitted steps were reasonably practicable.

450. The admitted steps would have required the Labour Hire Company to prohibit and prevent the workers from working on the roof of the Shop until it had required the General Partner to install the protective covers to the skylights and the permanent guardrail to the edge of the roof. The Labour Hire Company has conceded that the admitted steps were reasonably practicable.

451. The General Partner and the Labour Hire Company contended that if the admitted steps had been taken in combination that the pleaded risks would have been eliminated, in so far as that was reasonably practicable.

452. The prosecutor contended that the admitted steps did not eliminate the pleaded risks, but only minimised them, thereby requiring the further steps to be taken by the General Partner and the Labour Hire Company to ensure safety, in so far as that was reasonably practicable. The prosecutor relied on cl 78 and 79 of the Regulation to argue that the admitted steps were risk minimisation steps only. The prosecutor contended that the admitted steps were not capable of making the roof a “solid construction” within the meaning of cl 78(5) of the Regulations because the requirements of cl 78(5) are cumulative and could not be satisfied because the roof was not of “an even and readily negotiable surface”. [48] It followed in the prosecutor’s argument that because the requirements of cl 78(5) could not be satisfied that the risk of a fall referred to in cl 78(2) could not be eliminated, and thereby cl 79 of the Regulations applied which refers to the use of “fall prevention devices” such as edge protection and covers as minimisation steps.

453. I do not accept the prosecutor’s argument for the reasons that follow.

454. The question of whether or not relevant steps eliminate or minimise a risk, is a question of fact: Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153. While the conduct of work from a solid construction may be a method of eliminating the risk of a fall, it may not be the only way of eliminating the risk. This will depend on the facts of the case.

Consideration

460. The resolution of issue 5 involves the determination of whether the pleaded steps were reasonably practicable through the application of s 18 of the Act which involves questions of fact: Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153.

461. The effect of Inspector Kent’s evidence, which I accept, was that if the corporate defendants had taken the admitted steps that most of the further steps would have become superfluous, because they were not reasonably practicable or because they would not have had a demonstrable impact on safety.

462. I will now turn to address each of the further steps pleaded in Summonses against the General Partner and the Labour Hire Company. [49]

The further steps

Exclusion zones marked by temporary barricades around the skylights [50]

463. The prosecutor pleaded that an exclusion zone around the skylights should have been implemented and delineated by physical barriers such as temporary guardrails or barrier tape attached to bollards. The use of an exclusion zone was an isolation measure designed to separate workers from the hazard posed by the skylight.

464. The pleading required the Labour Hire Company to provide, maintain and implement the exclusion zone, when it was not the person with control of the system of work. It could have provided training to its employees on such matters or required the General Partner to implement the exclusion zones, but neither of those matters were pleaded. I am not satisfied as a preliminary issue that the Labour Hire Company was in a position to implement the exclusion zones and that such a step was reasonably practicable for it to take.

465. Jayanthan gave evidence that there were plastic bollards and barrier tape available to him, that were used to isolate areas in the Shop where cleaning was being undertaken. There was no evidence about the cost or suitability of setting up an exclusion zone with a securely fixed barrier capable of preventing entry into it. In addition, there was no point in setting up an exclusion zone around the skylights with a securely fixed barrier, if protective covers were installed. I am not satisfied that such an exclusion zone was reasonably practicable.

466. A temporary exclusion zone marked by bollards and plastic barrier tape, as described by Jayanthan, was a simple and inexpensive step available that would have marked the hazard to the workers on the roof. It would have provided a visual prompt to the instructions.

467. The installation of a permanent cover on the skylights was an engineering control that was superior in the hierarchy of control measures to the use of an exclusion zone. The residual risks were removed by the installation of a permanent cover over the skylights, but not by the use of an exclusion zone. A temporary barrier to the skylights would not have prevented a fall through a skylight if a worker had tripped or slipped and fallen through it and onto a skylight.

468. Had a permanent cover been installed on the skylights, the use of an exclusion zone was unnecessary because it would not have added anything to the provision of a safe working environment on the roof. For the reasons given the permanent cover would have eliminated the risk of a worker falling through a skylight. The permanent cover was a far more effective control measure compared to the use of a marked exclusion zone.

469. I am not satisfied that the use of a marked exclusion zone around the skylights was a reasonably practicable measure.

Pictorial warning signs [51]

470. The prosecutor pleaded that the General Partner and the Labour Hire Company should have installed pictorial warning signs on the roof to warn workers required to go on the roof. I assume that the warning signs should have been provided both for the hazard posed by the edge of the roof and the skylights.

471. Examples of the types of warning signs that could have been used were contained in Inspector Kent’s first report and the guidance material.

472. The pleading required the Labour Hire Company to provide, maintain and implement the warning signs, when it was not the person with control of the system of work. It could have or required the General Partner to install the warning signs, but that was not pleaded. I am not satisfied as a preliminary issue that the Labour Hire Company was in a position to install the warning signs and that such a step was reasonably practicable for it to take.

473. The expert evidence of Inspector Kent led on this particular was contained in Section 18 of his first report. Paragraph 18.1 of that report commented on the efficacy of warning signs in the following terms:

Whilst signs could be easily implemented, in my opinion they are one of the least effective controls for falls. They do not prevent exposure to fall hazards and are unreliable as a warning indicator, particularly if placed on or close to the actual hazard. It is reasonably foreseeable a worker may have their back to the sign, or be distracted, engrossed, or otherwise rendered inattentive by the task they are performing, thereby rendering the warning ineffective.

474. Warning signs were an administrative control that were only slightly superior than providing oral instructions. By comparison, the admitted steps were permanent isolation or engineering controls that were far superior to the installation of warning signs. Had the admitted steps been implemented, the installation of warning signs was unnecessary because it would not have added anything to the provision of a safe working environment on the roof. For the reasons given, the permanent cover would have eliminated the risk of a worker falling through a skylight and the risk of a worker falling off the edge of the roof. The installation of warning signs could not do so.

475. I am not satisfied that the installation of pictorial warning signs on the roof was a reasonably practicable measure.

Conduct an adequate risk assessment [52]

476. The General Partner and the Labour Hire Company were in the same position in relation to this particular. The General Partner, as the person with control of the system of work, was under an obligation to ensure that the system of work was a safe system and the conduct of an adequate risk assessment was an indispensable starting point. The Labour Hire Company should have known the types of tasks that its employees were being asked to perform and it was required to ensure that they were adequately protected when working for the General Partner. Similarly, an adequate risk assessment of those tasks was an essential starting point for the Labour Hire Company.

477. Part 3.1 of the Regulations applied to both the General Partner and the Labour Hire Company as PCBUs and required both of them to conduct a systematic risk assessment in accordance with cls 34-38. Neither of them did so.

478. The evidence demonstrates that Michael and Jayanthan, on behalf of the General Partner and the Labour Hire Company, knew of the risk of falling off the edge of the roof and the risk of falling through a skylight. They also both knew that the risks were serious in that a worker could be killed and that steps needed to be taken to mitigate against both of the risks. What they did amounted to a rudimentary form of risk assessment, but for the reasons that follow I am satisfied that it was an inadequate risk assessment.

479. The Falls Code was a readily available guidance document that described the risk assessment process that should have been undertaken by the General Partner and the Labour Hire Company relating to the task of cleaning the solar panels on the roof of the Shop.

480. In the alternative, the General Partner or the Labour Hire Company could have asked its usual safety consultant, CSA, to assess the task of cleaning the solar panels and to recommend and implement appropriate control measures. Had it done so, that may have satisfied the requirement to undertake an adequate risk assessment.

481. I am satisfied that Michael and Jayanthan’s assessment of the task failed to identify and deal with the residual risks, particularly that a worker may accidentally fall by reference to foreseeable circumstances such as a trip, a slip, inadvertence, negligence or disobedience of the instructions. In other words, their assessment of the risks was inadequate.

482. I am satisfied that Michael and Jayanthan failed to identify the available control measures referred to in the Falls Code and other available guidance material, and to rank the available control measures by reference to the hierarchy of the control measures. The General Partner and Labour Hire Company identified administrative control measures only which were capable of being easily defeated, which was demonstrated by the incident.

483. The General Partner and the Labour Hire Company should have identified the need for permanent covers on the skylights and permanent edge protection for the roof, as engineering controls that would have eliminated the risk. Had the General Partner and the Labour Hire Company consulted the Falls Code, they would have identified those control measures as the appropriate control measures to be considered for implementation.

Devising and Implementing a Safe Work Method Statement (SWMS) relating to work on the roof [53]

486. As a starting point, the prosecutor contended that the work of cleaning the solar panels was high risk construction work and accordingly that the Regulations required that a SWMS be devised and implemented for the work.

487. I accept that if the work involved in cleaning the solar panels was “construction work” then it was “high risk construction work” within the meaning of cl 291(a) of the Regulations, because it involved a risk of a worker falling more than 2m.

488. “Construction work” is defined cl 289 of the Regulations to include maintenance, but not if it is maintenance of “a minor nature carried out in connection with a structure”. “Maintenance is not defined in the Regulations and the ordinary meaning of the word should be used. The Macquarie Dictionary defines:

(a) “maintenance” as the act of being maintained, and (b) “maintain” as to keep in a specified state.

489. Inspector Kent referred to the description in the Safework Australia Information Sheet “Construction work of a minor nature” (2014) that states:

Work of a minor nature can include the following…inspecting and servicing of, or replacing parts or repairing damage to:

1. individual solar panels but not installing or replacing the entire solar panel system

2. ...

3. Testing maintenance or repair “work of a minor nature” is work that generally

4. requires minimal control measures to manage risks

5. requires little or no pre-start preparation of the work area, and

6. is small scale and often of short duration.

7. If the work can be safely carried out with minimal preparation of the work area then it could be considered to be “work of a minor nature”.

8. I am not satisfied that the cleaning of the solar panels was maintenance work.

9. In the alternative, had the admitted steps been taken, the work of cleaning the solar panels was work that required minimal control measures and minimal preparation of the work area, such that I am satisfied that it was work of a minor nature.

10. I am not satisfied that the work was construction work or high risk construction work and that cl 299 required there to be a SWMS for the work.

11. Notwithstanding that finding, a SWMS can still be beneficial to safety by setting out the risks, control measures to be implemented and the steps to be implemented in a work task. A further advantage of a SWMS that workers are usually required to sign the document to acknowledge that they have been trained on and understand its contents.

12. The pleading required the Labour Hire Company to provide, maintain and implement a SWMS for work undertaken on the roof of the Shop, when it was not the person with control of the system of work. It could have or required the General Partner to have a SWMS and to train its workers on it, but that was not pleaded. I am not satisfied as a preliminary issue that the Labour Hire Company was in a position to implement a SWMS and that such a step was reasonably practicable for it to take.

13. After the incident the General Partner retained CSA to devise and implement a SWMS for the task of cleaning the solar panels. In final submissions the prosecutor acknowledged that it relied on the content of that SWMS as what was required before the incident.

14. The post-incident SWMS referred to a number of tasks and work methods that were not used at the Shop. Apart from the cleaning of the solar panels and fixing the leak in the roof, there was no evidence that workers were regularly required to work on the roof of the Shop. The SWMS covered a multitude of methodologies that were not applicable to the General Partner’s business.

15. A SWMS could have been devised and implemented without significant cost or inconvenience to the General Partner.

16. Implementing a SWMS was an administrative control that was only slightly superior to providing oral instructions. By comparison the admitted steps were permanent engineering controls that were far superior to the introduction of a SWMS. Had the admitted steps been implemented, the post-incident SWMS was unnecessary because it would not have added anything to the provision of a safe working environment on the roof. For the reasons given, the admitted steps would have eliminated the risk of a worker falling through a skylight and the risk of a worker falling off the edge of the roof. The implementation of a SWMS could not do so.

Provision of adequate instruction, training and supervision for working at height [54]

501. The prosecutor pleaded that the General Partner and the Labour Hire Company should have provided working at heights information, instruction, training and supervision relating to the work conducted on the roof of the Shop.

502. The General Partner and the Labour Hire Company were in the same position in relation to this particular. The General Partner as the person in control of the system of work, was required to provide adequate training to its workers, including working at heights training if that was necessary. The Labour Hire Company, as the employer of the workers, was required to train its employees to undertake the kind of tasks that it knew they would be asked to complete during their placement with the General Partner.

503. The content of any training or supervision required depends on the nature of the work carried out by a worker, the nature of the risks and the control measures to be implemented. For example, if a worker is required to use a fall arrest system such as a harness and lanyard, it will be necessary to train the worker on the use of that equipment which would usually require training by a specialist training provider. It follows that a supervisor of that kind of work would also have to be properly trained in the use of that equipment.

504. The work of cleaning the solar panels did not require the workers to be trained on the use of specialist equipment. If the admitted steps had been taken, training on their use was not required because they were passive control measures that did not require operation to deliver a high degree of protection to the workers.

505. Training and supervision were administrative controls that were equivalent to providing oral instructions. By comparison the admitted steps were permanent engineering controls that were far superior to the provision of training and supervision. Had the admitted steps been implemented, the training and supervision contended for was unnecessary because it would not have added anything to the provision of a safe working environment on the roof. For the reasons given, the admitted steps would have eliminated the risk of a worker falling through a skylight and the risk of a worker falling off the edge of the roof. The provision of training and supervision could not do so.

506. I am not satisfied that the provision of working at height training and supervision were reasonably practicable measures.

Conclusion on Issue 5

507. I am satisfied beyond reasonable doubt that the General Partner and the Labour Hire Company failed to take the reasonably practicable step of conducting an adequate risk assessment and I will take this step into account, in addition to the admitted steps, when assessing the appropriate penalty for the s 32 offences committed by them.

508. I am not satisfied beyond reasonable doubt that the prosecutor has established any of the remaining particulars of breach of duty.

Issue 6 Did Michael Zammit owe a health and safety duty pursuant to s 28(b) of the Act? In particular, was Michael Zammit “at work” when he gave the relevant instructions to Jayanthan?

509. Michael contends that the evidence cannot establish beyond reasonable doubt that he was at the Factory on the day of the incident and on that basis he was not “at work” and thereby did not owe the health and safety duty provided for by s 28(b) of the Act. Put another way, Michael contends that the words “at work” in s 28 of the Act involve a temporal or geographical requirement that Michael was at the workplace when the incident occurred.

510. The prosecutor contended that the evidence established that Michael was at work on the day of the incident and the issue falls away.

511. Ms Zvirblis gave evidence that she did not work on Saturdays at the time of the incident and did not know if Michael was at work on the day of the incident. Charles gave evidence that Michael did attend work sometimes on Saturdays and that he usually came in in the afternoon. Mr Velusamy did not recall seeing Michael at work on the day of the incident. Jayanthan’s evidence was that he did not know if Michael was at work on that Saturday.

512. Taking into account all of the evidence, I am not satisfied beyond reasonable doubt that Michael was present at the Factory or the Shop on the day of the incident. However, in my view that is of no consequence.

513. The evidence clearly establishes that:

514. Michael had a supervisory role as a manager and he gave instructions to various workers from time to time to undertake work.

515. The workers at the Shop and the Factory considered Michael to be a “boss”.

516. Jayanthan had a supervisory role on the weekends and his usual role was to undertake maintenance in the Factory and at the Shop. Michael often gave instructions to Jayanthan to undertake maintenance tasks. Jayanthan could be given those instructions face to face or over the telephone.

517. Michael first instructed Jayanthan about the task of cleaning the solar panels by taking him onto the roof of the Meat Market and telling him how to undertake the task and providing him with the safety instructions.

518. Jayanthan thereafter conducted the task from time to time when he was asked by Michael to do so. On these occasions, Michael reiterated the safety instructions that he had conveyed to Jayanthan on the first occasion.

519. On the previous occasions, Jayanthan had undertaken the task of cleaning the solar panels with the assistance of other workers or he had instructed other workers to undertake the task.

520. Michael asked Jayanthan to clean the solar panels at some time before the incident. At that time, Michael reiterated the safety instructions that he had previously given to Jayanthan. In the circumstances, the instructions given by Michael over time were cumulative.

521. Jayanthan could not recall how he had received the instructions from Michael on the particular occasion.

Conclusion on Issue 6

521. I am satisfied beyond reasonable doubt that Michael owed the s 28(b) duty when giving the instructions.

Issue 7 Did Michael Zammit breach his s 28(b) duty by failing to take the steps set out in [7] of the relevant Summons? (Element (b))

522. The resolution of Issue 7 requires a determination of whether Michael failed to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons by failing to take the pleaded steps in [7] of the Summons.

523. The prosecutor is required to demonstrate the particular measures that should have been taken to control the risk identified: Kirk at [37].

524. In order to find Element (b) established I must be satisfied beyond reasonable doubt that the defendant failed to exercise reasonable care by failing to take the steps set out in the particulars of breach in [7] of the Summons.

525. The relevant principles are set out at [252]-[276] above, and I will not repeat them.

526. The pleaded risk was the risk of death or serious injury through one of the workers falling through a skylight or falling off the edge of the roof.

527. Michael contended that the alleged particulars of breach of the s 28(b) duty were outside the scope of the duty imposed by the Act and that they were actions that should have been taken by the relevant PCBU. It should also be noted that it was not alleged that Michael was an officer of a relevant PCBU or that he owed a duty pursuant to s 27 of the Act. Michael submitted that the particulars of his breach of duty were very similar to those alleged against the relevant PCBUs and that indicated that the prosecution had given no significant consideration to delineating between the duty owed by Michael and the duties owed by the relevant PCBUs.

528. The prosecutor’s submissions on this issue were very unhelpful. The prosecutor asserted that on the basis of Michael’s status as a manager and a member of the Zammit family that he had the power to implement the measures pleaded in [7] of the Summons, that those measures would have prevented the incident and thereby Michael should have taken those steps. This was an exercise in pure hindsight reasoning rather than an application of the Shirt calculus.

Consideration

Background findings

529. It was obvious that by asking the workers to conduct work on the roof of the Shop that there was a risk of death or serious injury from a fall off the edge of the roof. It was reasonably foreseeable there was a risk of death or serious injury from a person falling through one of the skylights.

530. Michael had actual knowledge of both risks. He took steps to warn the workers of the risks and to provide instructions on how to undertake the work to avoid them.

531. The magnitude of the risk was significant and it involved a risk of death.

532. The likelihood of the risk coming home was low. The task of cleaning the solar panels was undertaken infrequently and had been undertaken on a number of prior occasions in accordance with the instructions, without incident.

533. Michael was a manager in the business of the Partnership. His day-to-day responsibilities involved problem solving in the Factory and overall responsibility for the operation of the Factory. Other managers reported to him. As a member of the Zammit family, he held a proprietary and influential interest in the business, notwithstanding that he had stepped down as a director of each of the corporate defendants. He had a say in whether the General Partner would expend funds but on large items of expenditure Charles made the final decision. He gave instructions to workers that included directions relating to safety. It was within his authority to prevent work being undertaken if he thought it was unsafe. He took responsibility for the instructions to clean the solar panels and formulated the system of work for that task. I do not consider the description of Michael as a “general manager” in the evidence added much to the analysis of what his actual duties and authority were.

534. There was no evidence that Michael had any knowledge of the guidance material. As a worker who was not alleged to be an officer of a relevant PCBU, there was no legal obligation on Michael to inform himself of the risks and the relevant control measures by referring to the available guidance material.

535. There was no evidence that Michael had any skills or qualifications relevant to the task of working at height.

536. The fact that Michael was the relevant individual who could have or should have taken steps to control the risks on behalf of the relevant PCBU in order for it to comply with its duty, does not mean that by failing to take those steps that Michael has breached his s 28(b) duty.

Particulars of breach of duty

537. I will now turn to deal with the particularised breaches of duty.

Permanent covers on the skylights and permanent edge protection on the roof [56]

538. The prosecutor pleaded that Michael should not have permitted or prohibited the workers to work on the roof in the absence of there being permanent covers installed on the skylights and permanent edge protection installed on the roof. Sub-paragraphs [7](a), (c) and (d) of the relevant summons can be dealt with together because they are variations on the same theme.

539. The prosecutor pleaded as a minimum that Michael should have required the relevant PCBUs to install permanent covers on the skylights and permanent edge protection on the roof. In other words, Michael should have prohibited the work until the relevant PCBUs agreed to, and in fact installed the permanent measures.

540. There is no evidence that Michael knew that permanent covers and permanent edge protection were available or appropriate measures before the incident. As a worker, the s 28(b) duty did not require him to make such enquiries and I am not satisfied that he should have known that the measures were available and/or appropriate.

541. The provision of permanent covers on the skylights were within Michael’s financial delegation, but permanent edge protection on the roof was not. Michael required the agreement of Charles to install the permanent edge protection. The task of cleaning the solar panels was infrequent and I am not satisfied that it was reasonable for Michael, as a worker, to require the relevant PCBUs to spend in excess of $30,000 to install permanent edge protection.

542. I infer that Michael believed that the work could be performed safely if the instructions were followed.

543. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](a), (c) and (d) of the Summons.

Allowing the workers on the roof with the red and white cover over one or more of the southern skylights [57]

544. For the reasons already given, I am not satisfied that Michael knew or ought to have known that the red and white cover had been placed over one of the southern skylights. I am not satisfied that as a worker that Michael ought to have known that the red and white cover had been placed over one of the skylights, because he had no duty to enquire about an irregular incident.

545. I am not satisfied that it was reasonably foreseeable to a worker in Michael’s position that there may have been an obstruction like the red and white cover that may have been the source of latent danger. The placement of the red and white cover was an unusual and ad hoc action taken by Jayanthan. It could not have been anticipated by Michael. For the reasons given I am not satisfied that Michael knew that the red and white cover had been placed over one of the skylights prior to directing Jayanthan to arrange the work.

546. Further, I am unable to make any significant finding as to the impact that the placing of the red and white cover had on the incident.

547. Jayanthan’s evidence was that the red and white cover was placed over one of the southern skylights, which I infer was the most eastern skylight because it was the one depicted in the photographs taken after the incident that was still covered. It is unlikely that the red and white cover was placed over the skylight that Mr Shanmugalingam fell through because no part of it was taken down through the skylight by Mr Shanmugalingam as I would have expected if it had been placed over the skylight when he fell through it. I am not satisfied that the red and white cover obstructed the view of the skylight or that it was otherwise of any casual significance to the incident.

548. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](b) of the Summons.

Failing to conduct an adequate risk assessment [58]

549. For the reasons given at [476]–[485] above, I am satisfied that Michael failed to conduct an adequate risk assessment of the task of cleaning the solar panels.

550. However, I am not satisfied that the s 28(b) duty required him to undertake a risk assessment. The legal obligation imposed by Part 3.1 of the Regulations to conduct a systematic risk assessment applies only to PCBUs. The guidance material also indicates that the obligation to undertake a risk assessment rests with a PCBU.

551. I am not satisfied that it was a reasonable response to the risk to require Michael to undertake a formal risk assessment when he was not, as a worker, under a legal obligation to do so.

552. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](e) of the Summons.

Implement a Safe Work Method Statement (SWMS) [59]

553. A SWMS is a means of complying with the systematic risk assessment process required by Part 3.1 of the Regulations. The obligation to devise and implement a SWMS is only imposed on a PCBU and in limited circumstances, such as for high risk construction work.

554. It is unlikely that an effective SWMS could be prepared without there first being in existence an adequate risk assessment, which for the reasons given, Michael was not obliged to undertake.

555. The implementation of a SWMS would not have added much to the oral warnings and instructions given by Michael on the risk posed by the fall hazards and how to avoid them.

556. I am not satisfied that the s 28(b) duty required Michael to devise and implement a SWMS.

557. I am not satisfied that it was a reasonable response to the risk to require Michael to devise and implement a SWMS when he was not, as a worker, under a legal obligation to do so.

558. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](f) of the Summons.

Exclusion zones marked by temporary barricades around the skylights [60]

559. I have had regard to the matters set out in [463] and [469] above without repeating them.

560. I am not satisfied on the evidence that Michael knew or ought to have known that an exclusion zone with a securely fixed barrier capable of preventing entry into it was an available measure to mitigate the risk of a fall through a skylight. This was a measure referred to in guidance material, which as a worker, Michael was not required to consult.

561. I am satisfied that as a manager providing instruction to workers to undertake a task with known risks to their safety, that he was under an obligation to warn the workers of the risks.

562. The use of a marked exclusion zone around the skylights would have had the effect of identifying the fall hazard and was a control measure that would have provided a visual prompt to reinforce the instruction to stay away from the skylights. The use of a marked exclusion zone would have increased the efficacy of the instructions.

563. The identification of a hazard through the use of an exclusion zone is a familiar sight in our daily lives, for example when work is being done on a footpath and an exclusion zone is established around a fall hazard such as an excavation. The evidence was that Jayanthan used plastic bollards and barrier tape in the Shop to establish temporary exclusion zones to keep members of the public out of where cleaning was being undertaken.

564. I am satisfied that Michael ought to have known that setting up a temporary exclusion zone using plastic bollards and barrier tape was an available, inexpensive and convenient step that could have been taken to increase the efficacy of the oral instructions.

565. I am not satisfied that Michael knew or ought to have known the recommended requirements for temporary exclusion zones on roofs provided for in available guidance material.

566. The direction to set up an exclusion zone around the skylights was a simple measure that could have been achieved with the equipment available to the General Partner. I am satisfied that Michael had the authority of the General Partner to direct Jayanthan to set up an exclusion zone using the available plastic bollards and barrier tape in the stores of the General Partner.

567. I am satisfied beyond reasonable doubt that the prosecutor has established that Michael breached the s 28(b) duty by failing to direct Jayanthan to set up a marked exclusion zone around the skylights using the available plastic bollards and barrier tape.

Pictorial warning signs [61]

568. I have had regard to the matters set out in [470]-[475] without repeating them.

569. I am satisfied that the purchase and installation of pictorial warning signs was within Michael’s financial delegation.

570. I am satisfied that as a manager providing instruction to workers to undertake a task with known risks to their safety that he was under an obligation to warn the workers of the risks in so far as he perceived them.

571. I am not satisfied that the purchase and installation of pictorial warning signs would have added much to the warnings given in the instructions. I accept Inspector Kent’s evidence that warning signs are an unreliable measure.

572. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](h) of the Summons.

Failing to provide adequate information, instruction or training for working at height and competent supervision [62]

573. Inspector Kent summarised the content of the Falls Code, providing that workers should be provided training on the proper use of PPE, the hazards and risks associated with work performed at height and how to use fall prevention devices including harnesses and lanyards.

574. Inspector Kent did not suggest that the use of PPE was appropriate in this case and accordingly it was not a reasonable step for Michael to take.

575. Inspector Kent stated that harnesses and lanyards were not suitable for use on the roof and accordingly it could not have been reasonable for Michael to arrange training on their use, which would have had to have been provided by a qualified external training provider.

576. Michael warned the workers in the instructions given that there was a risk of falling off the edge of the roof and through the perspex skylight cover. The risk of falling off the edge of the roof was obvious to a large extent. He gave instructions to work between the rows of solar panels and to not approach within 2m of the edge of the roof and to stay away from the skylights. I am satisfied that those warnings contained in the instructions were sufficient to point out the hazards posed by the edge of the roof and the perspex skylight covers and that they both involved a risk of a serious fall.

577. I am not satisfied that Michael knew or ought to have known about the residual risks or the content of the Falls Code.

578. The prosecutor did not specify what further training should have been provided to the workers apart from the implementation of a SWMS, which for the reasons given, I am satisfied that Michael was not obliged to provide.

579. Jayanthan did provide supervision to ensure that the workers were complying with Michael’s instructions. The prosecutor did not specify what additional supervision was reasonable for Michael to provide.

580. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](i) of the Summons.

Conclusion on Issue 7

581. I am satisfied beyond reasonable doubt that the prosecutor has established that Michael breached his s 28(b) duty by failing to instruct Jayanthan to set up a temporary exclusion zone around the skylights using the plastic bollards and barrier tape that were in the stores of the General Partner.

Issue 8 Did Michael Zammit’s breach of duty expose the workers to a risk of death or serious injury?

582. The principles relevant to causation are set out at [277]-[280] and I will not repeat them.

583. I have found that Michael breached his s 28(b) duty by failing to direct Jayanthan to set up a temporary exclusion zone using bollards and plastic tape around the southern skylights. It is necessary to determine if that breach exposed the workers to a risk of death or serious injury, by reference to what actually occurred in the incident.

584. For the reasons given, it is very difficult to determine how Mr Shanmugalingam fell through the skylight. I cannot determine if he came into contact with the perspex cover of the skylight cover accidentally, such as by tripping and falling or inadvertence, or deliberately.

585. A temporary exclusion zone delineated by bollards and plastic tape would not have eliminated the risk, because the temporary barriers could not withstand horizontal forces. Mr Shanmugalingam could have tripped, slipped or inadvertently walked through temporary barricades and fallen through the perspex cover of the skylight.

586. In order to be effective, relevant guidance material suggests that temporary exclusion zones on roofs should be set up no less than 3m away from the hazard, presumably to allow space for a worker to trip and fall without falling into the hazard. [63] An exclusion zone of that size would not have been practical for the southern skylights, because the gap between them and the nearest solar panels was 2600mm. If a temporary exclusion zone had been used it would have been much closer to the hazard, and therefore may not have provided much, if any protection, from an accidental fall or inadvertent passage.

587. For the reasons given, I am not satisfied that Michael knew or ought to have known of the required dimensions for an effective temporary exclusion zone.

588. The overwhelming cause of Mr Shanmugalingam’s exposure to the risk of death or serious injury as a result of falling through the skylight were the failures of the General Partner to provide and the Labour Hire Company to require permanent covers that would have prevented the possibility of a fall through one of the skylights. The provision of permanent covers would have eliminated the risk, irrespective of how Mr Shanmugalingam came into contact with the cover of the skylight.

589. By comparison, the absence of a temporary exclusion zone around the skylights may have minimised the risk to some extent, but equally it may not have. In circumstances where I cannot make any reliable findings on the mechanics of Mr Shanmugalingam’s fall, I cannot be satisfied beyond reasonable doubt that Michael’s breach of duty was a significant or substantial cause of Mr Shanmugalingam being exposed to the risk of death or serious injury.

Conclusion on Issue 8

590. Taking into account all of the evidence, I am not satisfied beyond reasonable doubt that the prosecutor has established Element (c) of the Category 2 offence pleaded against Michael.

Conclusion

591. My conclusions are as follows:

592. The prosecutor has not proved beyond reasonable doubt the elements of the Category 1 offences pleaded against the General Partner, the Limited Partner and the Labour Hire Company.

593. The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offences pleaded against the Limited Partner.

594. The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offence pleaded against Michael Zammit.

595. In relation to the pleas of guilty to the Category 2 offences entered by the General Partner and the Labour Hire Company on the basis of the failure to take the steps set out in [12]-[13], I am satisfied beyond reasonable doubt that the General Partner and the Labour Hire Company also failed to conduct an adequate risk assessment for the reasons set out in [476]-[485] and they should be sentenced on that additional particular.

596. I will list the matter on 31 March 2025 to fix a date for sentence for the General Partner and the Labour Hire Company for the Category 2 offences and to make final orders in relation to the other charges.

**********

Endnotes

I will refer to the Zammit family members by their first name to avoid confusion, and I intend no disrespect or informality by doing so.

“Engage in conduct” means doing an act or omitting to do an act: s 4 of the Act.

Including Ms Zvirblis, Michael and Jayanthan.

Section 3 of the Evidence Act and the Dictionary.

As defined in [86] below.

In describing the activities of the Shop business in this paragraph, it is necessary to revert from using the previously defined terms of the Partnership, the General Partner and the Limited Partner – but I will return to using those defined terms thereafter.

See Deputy Commissioner of Taxation v McGuire [2013] NSWSC 184.

Which I infer related to the Factory from Ms Zvirblis’ evidence concerning Michael’s involvement in engaging CSA and from all of the evidence relating to Michael’s duties within the Group.

Which was part of the same business as the Shop.

Mr Flyak, Charles and Jason each completed declarations to the ATO to this effect and Charles and Jason provided signed instructions to Mr Flyak to this effect, warranting that the information provided to him for the purpose of preparing the accounts was accurate and complete.

See R v Moore (2015) 91 NSWLR 276.

Nydam v R [1977] VR 430 at 439 approved by the High Court in R v Lavender (2005) 222 CLR 67 and Burns v R (2012) 246 CLR 334.

R v Sam (No 17) [2009] NSWSC 803 at [14], [21] and [31].

Patel v The Queen (2012) 247 CLR 531 and the Judicial Commission of New South Wales Criminal Trials Bench Book at [5-6260].

Waste Management NZ at [31-[32]

At [33].

Waste Management NZ at [28].

First report – National Review into Model Occupational Health and Safety Laws – October 2008 at [9.20] (the First Review Report); Explanatory Memorandum for the Work Health and Safety Bill 2011 at [130].

Scharfe at [97] and the First review Report at [9.18].

S 9AD(1)(b)(i) Corporations Act 2001.

Underling added.

See for example, W. Stevenson & Sons (A Partnership) v R [2008] EWCA Crim 273, a case related to the enforcement of fishing quotas.

Cox v Hickman (1860) 8 HL 268.

Ward v Newalls Insulation Co Ltd [1998] 1 WLR 1722.

If it cannot be met from partnership funds.

“Lead auditor” is defined in s 324F(1) Corporations Act 2001 (Cth) as the registered company auditor who is primarily responsible for the audit firm or the conduct of the audit.

When read with s 1311 Corporations Act 2001 (Cth).

Because it was unlawful or unsightly to do so.

Banks, Lindley & Banks on Partnership, 21st ed, Thomson Reuters, 2022, [28.02]-[28.03].

Lindley & Banks at [28.07].

So long as the variation does not remove the essential elements of a limited partnership: D Marks Partnership v Federal Commissioner of Taxation (2015) 102 ATR 245.

R (on the application of de Silva) v Revenue and Customs Commissioners [2017] 1 WLR 4384.

Clause 11.2 of the Partnership Deed.

Clause 7.7 of the Partnership Deed.

In so far as that was reasonably practical.

Section 67(2) Partnership Act 1892.

Mann, “Limited partnerships: A new Approach” (1992) AMPLA Yearbook 379 at 389.

At 1150.

Names of the limited partner, general partner and investment manager replaced with those respective terms.

[9](a), (c), (d) of the Summons alleging a breach of the s 20 duty and [11](a), (c), (d) of the Summons alleging a breach of the s 19(1) duty.

[9](b) of the Summons alleging a breach of the s 20 duty and [11](b) of the Summons alleging a breach of the s 19(1) duty.

[11](f) of the Summons alleging a breach of the s 19(1) duty.

[11](e) of the Summons alleging a breach of the s 19(1) duty.

[9](e) of the Summons alleging a breach of the s 20 duty and [11](g) of the Summons alleging a breach of the s 19(1) duty.

[9](f) of the Summons alleging a breach of the s 20 duty and [11](h) of the Summons alleging a breach of the s 19(1) duty.

[9](g) of the Summons alleging a breach of the s 20 duty and [11](i) and (j) of the Summons alleging a breach of the s 19(1) duty.

If I am wrong in my determination of issues 2-4, the further pleaded measures are almost identical and issue 5 will be relevant to offences committed by the Limited Partner.

Cl 78(5)(c) of the Regulations.

The pleaded measures in [11](a)-(d) of the s 32 Summons relying on a breach of the s 19(1) duty and [10](a)-(d) and (g) of the s 32 summons relying on a breach of the s 20 duty, pleaded against the General Partner, and the pleaded measures in [10](a)-(d) of the s 32 Summons relying on a breach of the s 19(1) duty pleaded against the Labour Hire Company, relate to the admitted steps and do not need to be considered further.

General Partner s 20(2)/s 32 [10](e), s 19(1)/32 [11](g), Labour Hire Company [11](g)

General Partner s 20(2)/s 32 [10](f), s 19(1)/32 [11](h), Labour Hire Company [11](g)

General Partner s 19(1)/32 [11](e), Labour Hire Company [11](e)

General Partner s 19(1)/32 [11](f), Labour Hire Company [11](f)

General Partner s 19(1)/32 [11](i), Labour Hire Company [11](i)

Section 3(1)(a) of the Act.

[7](a), (c) and (d) of the Summons

[7](b) of the Summons.

[7](e) of the Summons.

[7](f) of the Summons.

[7](g) of the Summons.

[7](h) of the Summons.

[7](i) of the Summons.

SafeWork NSW, Guide to safe solar panel installation, February 2021.

Amendments

03 April 2025

Changes made to numbered paragraphs where "bullets" were meant to be used.