The NSW District Court has recently fined $900,000 to Ganellan, a Sydney based builder, in relation to a scaffolding collapse at a construction site which caused the tragic death of Christopher Cassaniti and seriously injured Kahled Wehbe.

The resurfacing of this matter after almost 2 years has sparked debate as to whether industrial manslaughter legislation should be introduced in NSW and concerns raises issues in relation to building & construction, work health & safety and criminal law.

Current Landscape

Ganellan was the principal contractor at the Macquarie Park site and had engaged Synergy Scaffolding Service Pty Limited to design, erect, maintain and dismantle scaffolding at the site. The scaffolding in place at the time had been gradually dismantled over a period of time and it had mostly been removed at the time of the accident. Notwithstanding the scaffolding was mostly removed, it was still being used by workers at the site and was overloaded.

The scaffolding collapsed onto Mr Cassaniti and Mr Wehbe, whilst two employees had to jump off the scaffolding as it was collapsing and another two had to run to avoid the collapsing scaffold.

In the District Court Proceedings commencing by SafeWork NSW, Ganellan plead and was subsequently found guilty, of a criminal offence under section 32 of the Work Health and Safety Act 2011 (the Act). At section 32 the Act details that a legal person (including the company or its officers) commits an offence if:

1. The person has a health and safety duty; and
2. The person fails to comply with that duty; and
3. The failure exposes an individual to a risk of death or serious injury or illness.”

The provision also stipulates that the maximum penalty a company may face for a contravention of section 32 is $1,500,000. Having regard to the fact that Ganellan had plead guilty, it did not have any record of previous convictions, it had demonstrated remorse, had good prospects of rehabilitation and importantly cooperated with SafeWork, the Court determined that the appropriate fine was $1.2 million which would be reduced by 25%.

At section 31, the Act also makes gross negligence or reckless conduct in a workplace a criminal offence. Currently, the maximum penalty for contravening section 31 is $3,000,000 and/or 5 years imprisonment for company officers involved.

Calls for Reform in NSW

In the wake of the incident, calls have been made for New South Wales to adopt similar Industrial Manslaughter provisions to those currently operating in Queensland.

In the Queensland Act, a company or senior officer will be found to have committed an offence if:

1. A worker dies in the course of carrying out work for the business or undertaking, or is injured in the course of carrying out work for the business or undertaking and later dies; and
2. The person’s conduct caused the death of the worker; and
3. The person is negligent about causing the death of the work by the conduct.”

A company found guilty of industrial manslaughter is liable for a fine of approximately $10,000,000. Individuals, including Senior Company Officers, could also face up to 20 years imprisonment.

An ‘Officer’ is defined as individuals within an organisation that have the ability and resourcing to improve safety, namely, directors, and any person that participates in the decision-making which affects a substantial part of the organisation.

Advocates for reform in NSW have suggested that introducing similar industrial manslaughter provisions in NSW will force Senior Company officers to more seriously consider and prioritise the safety of their workers, or else face significant fines and imprisonment.

Of course, the introduction of such a reform in NSW will have a profound impact in the Building & Construction Industry and could help in avoiding these kinds of accidents.

If you have any questions about this article or any of the issues raised in it please do not hesitate to contact Coleman Greig’s Building & Construction team, who would be more than happy to assist you today.