A person conducting a business or undertaking (PCBU) may owe a duty under s 19(2) of the WHS Act in respect of work performed by a labour hire worker even where the PCBU is not contractually obliged to perform that type of work, provided the work is closely connected to and advances the PCBU's business interests. The scope of a PCBU's business or undertaking can extend pro hac vice to encompass work that is essential to the PCBU's contracted obligations. An erroneous reliance on s 244 to impute conduct to a body corporate is not material where the conviction is independently supported by factual findings. The question whether s 5AA of the Criminal Appeal Act 1912 (NSW) permits unrestricted challenges to findings of fact (applying Warren v Coombes principles) was raised but left open.
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