Australia: Labour hire business acquitted of OHS charge in Industrial Court of NSW

Sparke Helmore Lawyers successfully defended an occupational health and safety (OHS) prosecution brought against its client, GTE Workplace Management Pty Ltd (GTE). GTE is a labour hire business that supplies employees to other "host" businesses. This was one of the final judgements handed down by the NSW Industrial Court.


On the night of 24 March 2009, an employee of GTE was fatally injured whilst working on a rail construction and upgrade project in Telrah, NSW.

Two other GTE employees sustained injuries in the incident, as did another two workers who were employed by other parties working at the site.

The project was commissioned by the Australian Rail Track Corporation and involved numerous companies and workers:

  • Abigroup was engaged by ART Corporation to undertake the works as principal contractor
  • Abigroup engaged Taylor Railtrack Pty Ltd to install new rail crossover panels
  • Abigroup also engaged Boom Logistics to supply and perform crane operations for the installation of the new panels
  • Taylor Rail engaged MVM Rail Pty Ltd to provide labour for the works, and
  • MVM subsequently engaged GTE to provide additional labour.

On the night of the incident, the workers were using a crane to lift pre-constructed panels (consisting of rails connected to sleepers by clips) into place. During this process, a panel that was being lifted was misaligned and unable to be correctly installed.

Around this time, the crane driver from Boom Logistics lowered the panel but did not release all of the weight onto the ground. The supervisors from Abigroup, Taylor Rail and MVM Rail, then instructed workers to unclip a number of clips on the panel, remove some of the rails and slide them into place. At this time, the supervisors and workers were unaware that the panel was not completely resting on the ground.

The workers started disconnecting some clips on the panel, which resulted in the remaining clips weakening and the rail lines springing free. Numerous workers were struck by the rails and sustained significant injuries.

The Court heard evidence that discussions took place between representatives from many of the companies involved, on how to rectify the issue.

The charge

GTE was charged with failing to ensure the health and safety of its employees as it allegedly did not:

  • keep a record of which employees were contracted to carry out particular work
  • assess the risks to the health and safety of employees that may arise while at hosts' workplaces
  • make inquiries as to how these risks were to be controlled at hosts' workplaces (such as obtaining safe work method statements and ascertain who would be supervising employees), and
  • provide instruction in relation to work to be carried out at hosts' workplaces.
  • GTE pleaded not guilty and maintained that any risks to its employees arose because of the failures of others and circumstances that were out of its control. GTE asserted that the incident was the result of unforeseen circumstances that could not have reasonably been contemplated by GTE.

The decision

GTE was found not guilty. The Judge accepted that the risks to GTE employees were not caused by any acts or omissions of GTE.

Related prosecutions

Prosecutions were also brought against other parties involved in the incident:

  • Taylor Rail plead guilty to two charges under the OHS Act and was fined $200,000
  • MVM Rail also plead guilty to two charges under the OHS Act and was fined $160,000
  • Boom Logistics plead guilty to one charge under the OHS Act and was fined $100,000, and
  • Abigroup was heard concurrently with GTE in a defended hearing and was found guilty of one charge under the OHS Act. The matter is listed for sentencing hearing on 7 May 2014.

What does this mean?

Labour hire agencies need to be mindful of their responsibilities at a host's site, even if they are not continually present on site. In this instance, GTE was not prosecuted, as it was able to establish it had taken reasonable steps to determine the type of work being performed by its employees and had verified the safe work systems implemented by host entities. In these circumstances, it was accepted that there was little GTE could have done to avoid an incident arising from unforeseen circumstances.

Labour hire businesses should take steps to implement and verify that appropriate mechanisms are in place to ensure, so far as reasonably practicable, the health and safety of their employees during their engagement at host workplaces.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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