The New South Wales District Court (Court) has recently delivered a sobering reminder to businesses that the consequences of breaching Work, Health and Safety (WHS) obligations can result in serious financial consequences.
In two decisions handed down on 14 July 2022 following prosecutions by SafeWork NSW, Perry’s Roofing Pty Ltd (PR) was dealt two significant penalties by the Court, in respect of an electrical shock incident on a construction site affecting two workers (first incident) and another falling incident which affected four workers (second incident).
Facts
In summary of the first incident, this occurred in February 2019 at a construction site where PR was conducting works as a subcontractor. One worker (subcontracted by PR) on the site was dismantling edge protection while standing on the roof of a structure and suffered fatal injuries after receiving an electrical shock when high voltage power lines contacted a steel handrail. Another worker (subcontracted by PR) on the site attempted to render assistance to the worker who received the electrical shock and suffered severe flash burns to his legs.
In summary of the second incident, on 28 February 2019 at a construction site, PR was given the task of removing asbestos roof sheeting. Workers were placing the roof sheets in stacks of 10 to 25 sheets, of which the significant weight caused the roof to collapse with the roof sheets falling, causing safety mesh damage and two workers to fall through the roof for a distance of 4 metres onto concrete. Another two workers also sustained injuries as a result of this incident.
Subsequent to both incidents, SafeWork NSW conducted investigations and issued prohibition notices to the primary contractors.
In respect of the primary contractor of the site in which the first incident occurred, the prohibition notice required the primary contractor to ensure that not plant or thing comes within 4 metres of high voltage power lines.
In respect of the primary contractor of the site in which the second incident occurred, the prohibition notice required the primary contractor to:
- cease all works immediately;
- ensure the risk of falls was eliminated or minimised by developing and implementing a safe system of work; and
- ensure Safe Work Method Statements (SWMS) were prepared and reviewed prior to carrying out further roof works.
Findings
In respect of the first incident, the Court found that the Director for PR had not properly ensured that safety processes and systems were implemented and followed, that workers were properly inducted, and that an experienced worker was always present on site to ensure that all workers are complying with those procedures. The Director for PR contended that he understood that the primary contractor under which PR was engaged to perform work, Riverwall Constructions Pty Ltd, would be responsible for undertaking site-specific risk assessments.
In respect of the second incident, the Director for PR contended that the primary contractor under which PR was engaged to perform work, Advanced Buildings (NSW) Pty Limited, had control over the site and its safety.
In respect of both incidents, the Court found that a duty cannot be transferred to another person (section 14 of the Work Health and Safety Act 2011 (NSW) (WHS Act)) and that “more than one person can concurrently have the same duty, and that each duty holder must comply with the standard required by the Act” (section 16 of the WHS Act).
Decision
PR pleaded guilty to both incidents for failing to comply with its WHS duty exposing the workers to a risk of death or injury in breach of section 32 of the WHS Act. As a result of the early guilty pleas by PR, the Court awarded a 25% discount on the penalties resulting in final penalties of $450,000 and $150,000 respectively.
Key takeaways
Ultimately, it is not a defence for a business to suggest it is not responsible for complying with its WHS obligations to the workers it engages simply because another business was primarily responsible for a worksite.
Businesses cannot simply transfer their WHS obligations to other businesses, such as a situation where the business is subcontracted by another business and the subcontracted business turns a blind eye to any WHS risks or concerns as it is not the primary contractor on the worksite.
Further, these cases also show that businesses who subcontract labour may continue to have WHS obligations over those subcontracted workers, even though are not employees.
While the penalties can be significant, the biggest impact can be to reputation of a business and the legal costs expended in dealing with any legal fallout. In essence, it pays to ensure that your business is WHS compliant with a view to avoiding considerable legal headaches in the future.
Considering the above, it is important that businesses have:
- appropriate risk assessment measures;
- a SWMS, if in high-risk construction work;
- WHS policies and procedures; and
- controls to ensure that work is conducted in a safe environment and safe manner.
If you would like assistance with the above, please do not hesitate to contact us.
SafeWork NSW v Perry’s Roofing Pty Ltd [2022] NSWDC 261
SafeWork NSW v Perry’s Roofing Pty Ltd [No. 2] [2022] NSWDC 262
