On 13 January 2023, a cleaning company and its officer were sentenced in the Maroochydore Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with their primary health and safety duties pursuant to sections 19(1) and 27(1), respectively.
The defendant company operated a cleaning business and was engaged to conduct a final clean at a newly refurbished education site in Burnside. The defendant company thereafter subcontracted two individuals to provide cleaning services for the site.
On 23 October 2020, the subcontracted workers were instructed to clean a structure and a plant room, both of which were located on the roof. The workers used the pre-existing metal walkway on the roof to get to the plant room to remove mould from the louvres.
After completing the work in the plant room, one of the workers was walking across the roof when he fell approximately four metres through a skylight onto tiled floor. The worker was taken to hospital by ambulance and released the next day with minor bruising.
The defendant company failed to manage the risk of falling through the skylight by failing to ensure that risk minimisation controls had been implemented at the workplace, including ensuring edge protection or barriers were installed around the skylight before work commenced on the roof and warning workers of the presence of the skylights.
The officer, as the only person involved in the day-to-day running of the business, failed to exercise due diligence to ensure the company had the appropriate resources and processes in place to eliminate or minimise the risk. These control measures would have mitigated the risk.
Following the incident, the officer participated in two voluntary interviews, both personally and in his capacity as the officer of the company.
Magistrate Stjernkvist noted that the defendant company needed to have in place systems to protect its workers. His Honour found the following comments of Scotting DCJ in SafeWork NSW v Investa Asset Management Pty Ltd particularly relevant:
“A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent. If there is a foreseeable risk of injury arising from a worker’s negligence in carrying out his or her duties then this is a factor which the duty holder must take into account. It may not always be possible to foresee various acts of inadvertence by workers, but duty holders must conduct operations on the basis that such acts will occur, and they must be guarded against to the fullest extent practicable.”
His Honour also had regard to the defendants having taken steps to improve their work health and safety procedures post-incident and the comments of Her Honour Judge Fantin in Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd, noting “care must be taken in giving the respondents credit for doing something which should have been done in any event. The legislation is not directed at ex post facto measures. It requires positive preventative steps to be taken to ensure workers are afforded safe working environments.”
In sentencing, Magistrate Stjernkvist took into account the defendants’ early pleas of guilty, their participation in the administration of justice through their voluntary interviews and their lack of capacity to pay a fine in mitigating the sentence. His Honour also had regard to the totality of the effect of the fines and court costs on the defendants.
In light of these factors, a fine of $20,000 was imposed on the defendant company along with $1,601.40 in costs. The officer was fined $4,000 along with $101.40 in costs. All costs were referred to SPER. No convictions were recorded.
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Section 19(1) of the Work Health and Safety Act 2011
Section 27(1) of the Work Health and Safety Act 2011