Two recent New South Wales District Court decisions considering WHS prosecutions have attracted online commentary and are worth reviewing, although not necessarily for the reasons being talked about.
SafeWork Australia v Danrae Remedial Services Pty Ltd [2025] NSWDC 70, published on 18 March 2025 (Danrae) has been discussed because of criticisms by the Court of an app used by the employer as a risk assessment tool.
While interesting insofar as the case comments on the use of technology in safety management, the criticisms of the app by the Court are no different from earlier case law looking at paper-based systems, finding that the app did not provide the workers with the requisite information, and it did not constitute an adequate risk assessment.
The other decision, SafeWork NSW v Pendle Ham and Bacon Pty Ltd [2025] NSWDC 63 (Pendle) provides an excellent analysis of the concepts of gross negligence and recklessness in the context of WHS legislation. The Pendle decision should be a must-read case for most health and safety practitioners.
However, the cases are also interesting because of the discussion – and apparently inconsistent treatment – of the question of what constitutes “testing, maintenance or repair work of a minor nature carried out in connection with a structure”.
The concept of “minor work" is important because if work is “minor work”, then it is not “construction work” for the purposes of the WHS Regulation. If work is construction work, then other important legal consequences flow, such as the potential for work involving construction work to be a “construction project”, requiring the appointment of a “principal contractor”, and the requirement for a safe work method statement (SWMS) if the construction work is “high-risk construction work”.
Before looking at the specifics of the cases, it is important to understand the idea of SWMS appears to have been considered in two contexts in both cases.
One context is the strict, technical legal requirements under the WHS Regulations.
WHS Regulations require a SWMS for high-risk construction work, and the form and content must comply with the requirements of the WHS Regulations.
However, SWMS was also considered in a general context, where the idea of a SWMS was not as a technical requirement under the WHS Regulations, but as a safe work procedure or safe work instruction.
This distinction means, for example, that even if work is not high-risk construction work, and a SWMS is not technically required under the WHS Regulations, it may still be reasonably practicable to provide workers with a “SWMS” (or safe work procedure or safe work instruction).
In the Danrae case, workers were applying a waterproofing membrane to the third-floor balcony of a townhouse. The task involved applying a highly flammable adhesive to membrane sheets and the floor of the balcony and then sticking the membrane sheets to the floor. Where the edges of the membrane sheets overlapped, the workers used a heat gun to heat weld them together. The heat gun could reach temperatures of up to 700 °C.
It was raining at the time of the work, and one worker used the heat gun to dry areas of the floor so that the adhesive would stick. The heat gun was left switched on, close to where the work was being undertaken. When another worker used a roller to apply the adhesive to membrane sheets and the floor, the vapour from the adhesive ignited and a flash fire engulfed the worker causing burns to his lower legs.
In the case, the company argued that the relevant work was minor work, but this argument was rejected. However, the reasoning of the Court raises several significant and problematic questions.
In rejecting the argument that the work was minor work, the Court said, first, while accepting the job of applying the membrane sheets to the balcony floor was a small job within the scope of Danrae’s business, it posed a significant risk of death or serious injury to the workers.
Second, because the control measures involved workers understanding the risks of a hazardous chemical and complying with directions for its safe use, a SWMS was a more effective way of ensuring that the workers understood the risks and implemented the necessary control measures.
Third, the work could not be considered in isolation. The work required the removal of the tiles, the cladding and the balustrade from the balcony. The erection of scaffolding was required to provide safe access to the balcony and edge protection for the workers. Once the waterproofing had been completed, the remedial work involved replacing the tiles, cladding and balustrade on the balcony and removing the scaffolding. When considered as a whole, the Court was not satisfied that the remedial work was repair work of a minor nature.
The first two reasons are especially problematic.
If work is construction work because it is high-risk and a SWMS would be a “more effective” way of managing the relevant work, then any work, no matter how minor, could be “construction work”, effectively making the exclusions to the definition of construction work redundant.
For example, another class of work excluded from the definition of construction work is “the manufacture of plant”. If the manufacture of plant was high-risk and could be more effectively managed using a SWMS, does it then become high risk construction work and attract all the technical requirements under the regulations? That approach does seem difficult.
The reasoning behind the application of a SWMS also seems somewhat circular. Under the WHS Regulations a SWMS is only required for high-risk construction work. If the work is not construction work (e.g., minor work) a SWMS is not required, however, applying the reasoning in the Danrae case, if a SWMS is a more effective way of managing the work, the work becomes construction work. This does not seem consistent with the overall structure and purpose of the WHS Legislation.
The position in the Danrae case can be contrasted with the Pendle case.
In the Pendle case workers were instructed to clean solar panels installed on the roof of a shop and one the workers fell through a frosted Perspex skylight about 8m to the concrete floor and suffered serious injuries.
The case is highly instructive in relation to issues dealing with partnerships, whether an entity is a PCBU, whether an entity has control of a workplace, gross negligence and recklessness. However, the case also considered the question of minor work.
Ultimately, the Court held that the work of cleaning the solar panels was not construction work, and that therefore, a SWMS was not required under the WHS Regulations.
Unlike the Danrae case, the Pendle case only looked at the nature of the work being performed, having regard to the Safe Work Australia Information Sheet “Construction work of a minor nature” (2014), which identified that minor work included:
The Court in Pendle did not consider any of the criteria discussed in the Danrae case.
While finding that a SWMS under the WHS Regulations was not required, the Court did say that:
Although the Court did go on to say that “[i]mplementing a SWMS was an administrative control that was only slightly superior to providing oral instructions.” (at [502])
In the end, the Court held that devising and implementing a SWMS (remembering it was not required under the WHS Regulations) was not a reasonably practicable measure.
Both the Danrae and the Pendel decisions are very interesting cases, and well worth taking the time to read. However, the different reasoning in the cases do create some difficulties in deciding whether work is “minor work” for the purposes of the WHS Legislation.
As always, when considering the application of WHS Legislation to your own business and circumstances it is a good idea to consult an experienced WHS lawyer.
Danrae Case
SafeWork NSW v Danrae Remedial Services Pty Ltd - NSW Caselaw
Pendle case