On 31 October 2023, an earthmoving company was sentenced in the Goondiwindi Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011, having failed to comply with the primary health and safety duty owed pursuant to section 19.
The defendant was conducting a business in excavation and repair of underground utilities and was engaged to detect and repair a leak at the Goondiwindi Regional Council water treatment plant. On 15 June 2021 workers of the defendant attended the plant and excavated the ground locating the leak in the underground filtered water supply pipe to the town water supply tank. This pipe was located approximately 2.2 meters underground and the trench was dug to a depth of approximately 2.5 meters.
On 16 June 2021 two workers of the defendant were directed to get into the trench to repair the pipe. This posed a risk to the workers health and safety as there had been no risk assessment undertaken for the excavation work, noting there was known risk of ground collapse with trenches at a depth of 1.5 meters, no safe work method statement (‘SWMS’) implemented, and no information, training, instruction or supervision provided in relation to the risk.
The risk of ground collapse did not materialise in this instance, but workers were exposed to chlorine gas which was omitted from the pipe when it was being repaired. This exposure was not attributable to the defendant. The day following the incident the defendant completed a risk assessment and made the trench larger, benching it, prior to completing the repair works.
In sentencing the defendant Magistrate Virginia Sturgess stated that there were aggravating aspects to the offending, that the defendant was engaged in excavation work and knew of the risk posed, and despite that there was no SWMS, no risk assessment and no supervision. Furthermore, Her Honour noted it was a well-known easy to address risk that was easily fixed post incident at minor cost to the defendant. Magistrate Sturgess indicated it was significant in this matter that there was guidance material available to the defendant, to inform it how to comply with the health and safety duty owed, both in the Work Health and Safety Regulation 2011 and Excavation work Code of Practice.
Magistrate Sturgess acknowledged in mitigation the defendant had had entered an early plea of guilty, had no prior convictions, cooperated with the investigation and addressed the risk post incident.
Taking into account all factors, Her Honour imposed a fine in the amount of $60,000 and declined to record a conviction.
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Sections 19 and 32 of the Work Health and Safety Act 2011