Full Judgement: https://www.caselaw.nsw.gov.au/decision/199a7abbe7151b6b3cb342c6

By Dr Laura Sowden, Partner and Annabel Cheung, Associate

In September 2025, a labour-hire worker at Sydney Airport was hit by a towing vehicle. The worker was a freight handler who suffered serious injury to his head and chest. Tragically, the worker died as a result of the accident. The incident is under investigation by SafeWork NSW.

The Transport Workers Union has argued that these are not isolated incidents, labour-hire workers are not sufficiently trained, their safety concerns are ignored, and that “workers are literally paying with lives and limbs”.

Labour-hire companies occupy a position where employees to whom they owe a primary safety duty work on the sites of the host employers who have the day-to-day control of the employee’s activity. This tragic incident at Sydney airport is timely, as a recent District Court of NSW decision explores the safety obligations of labour-hire companies.[1]

What Happened

In January 2024, SafeWork NSW commenced prosecution against a labour-hire company for breaches of ss 19(1) and 33 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) in the District Court of NSW (the Court) in relation to the following incident.

The Incident:

In September 2021, an employee of the labour-hire company (the Injured Worker) commenced work at Coco Republic in the role of warehouse store person. In February 2022, the Injured Worker was riding a pallet rider when he collided with another pallet rider driven by another employee of the labour-hire company. Both drivers saw each other but failed to stop in time, swerving and colliding as a result. The Injured Worker’s right foot was overhanging the platform while operating the pallet rider. In the collision the Injured Worker’s foot was crushed between the two pallet rider platforms and later had to be amputated.

The Law and Reasoning

The Court considered (1) whether the labour-hire company owed a health and safety duty and (2) whether the labour-hire company failed to comply with its health and safety duty.

The health and safety duty

The labour-hire company had a primary duty of care under s 19 of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers including the Injured Worker. This was not contested by the labour-hire company in its defence.

Did the labour-hire company fail in its health and safety duty?

Section 19 of the WHS Act requires:

“a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of persons carrying out work activities”

In exercising its discretion, the Court considered:

• The likelihood of the risk to the health and safety of the workers as a result of being struck, crushed or coming into contact with mobile plant equipment in a warehouse environment was moderate;
• Labour-hire companies placing their workers with host employers must have some knowledge of risks posed by mobile plant from its placement of workers at other warehouses;
• There is substantial guidance material provided by SafeWork NSW specific to labour-hire companies regarding its duties, and includes checklists for conducting health and safety assessments and host employer checklists.

In deciding that the labour-hire company failed in its health and safety duty as per s 33 of the WHS Act, Judge Scotting considered:

• The labour-hire company’s contact with its workers including the Injured Worker was inadequate. Yes calling the workers to ensure reliable attendance at the host employer was important and the labour-hire company did do such, but it had to go beyond asking how things were going – there needed to be proactive safety related enquiries;
• The labour-hire company failed to undertake adequate consultation to gather the information that it needed about the nature of the work undertaken, the risks associated and what measures to put in place to control that risk. It did not have a complete understanding of what its workers were doing at the host employer.
• The labour-hire company did not take steps to satisfy itself that the host employers’ procedures and control measures were effective and appropriately implemented.
• The labour-hire company did not properly enforce its own system of conducting WHS inspections at the host employer’s warehouse.
• The labour-hire company did not have appropriately trained staff to conduct WHS assessments of the host employer’s warehouse.

Decision

Judge Scotting found the labour-hire company guilty. The company owed a health and safety duty to the Injured Worker and failed to comply with that duty.

Penalties will be decided at a later date.

What does this mean?

Labour-hire employers have to take adequate steps to discharge their health and safety duties.

Although labour-hire employers do not have day-to-day control over workers, they must still:

1. Understand what their employees are doing on site;
2. Make adequate enquiries of their workers regarding safety;
3. Make adequate enquiries of the host employer regarding duties and risks;
4. Have regular and robust WHS assessment procedures in place.

Labour-hire employers are encouraged to use materials and checklists provided by SafeWork NSW and the NSW Code of Practice “Work Health and Safety Consultation, Co-Operation and Co-Ordination” as an approved Code of Practice, which provides guidance on how to meet the requirements for consultation on work, health and safety matters under the WHS Act.

In the decision, Judge Scotting warned against labour-hire companies prioritising their commercial interests in ensuring reliable attendance at work of its employees and their progression to full time placement for a fee over the health and safety of its employees.

Labour-hire employers should ensure staff are trained to conduct safety inspections and that workers receive proper training during onboarding. They should also maintain effective communication with host employer and workers, and monitor any changes in on-site work conditions.

Contact

Dr Laura Sowden | Partner | Workplace Relations, Employment & Safety

Direct +61 2 8035 7890 | Mobile +61 435 290 383 

[email protected]

 

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[1] SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400. Note: Mills Oakley Lawyers acted for the Defendant instructing Maurice Baroni of Counsel.