A principal contractor and a subcontractor on a Brisbane construction site have pleaded guilty to s32 offences under the Work Health and Safety Act 2011 (the ‘Act’).
On 15 June 2020, in the Brisbane Magistrates Court, the defendants were convicted and fined $75,000 each. The offending of the principal contractor arose from a breach of its duty under s20(1) of the Act. The offending of the subcontractor was the result of a s19(1) breach of the Act.
In 2017, the principal contractor, a construction company, was engaged to build a luxury unit complex in West End. The principal engaged the subcontractor to construct formwork on the site, and the subcontractor subsequently engaged a third party company to assist with work connected to the construction of the formwork.
The subcontractor submitted a Safe Work Method Statement (SWMS) to the principal contractor which was subsequently revised and approved. The SWMS did not have a process to identify the hazard of penetrations or voids. This SWMS was adopted by the third party.
Prior to 7 March 2018, the third party had identified the risk from a garbage chute penetration on level 2 of the construction site. The penetration measured 615mm wide and 780mm long. The third party had attempted to control the risk from the penetration by placing compressed fibro sheeting over it, on which was written, “peno no standing” and “no standing peno”.
On 7 March 2018, the third party had a mix of labour hire workers and direct employees performing works on Level 2. A labour hire worker was working in close proximity to the covered penetration. The worker stepped backwards onto the sheeting and fell to the level below, a fall of 3020mm, onto the plywood covering the penetration at that level. The worker sustained spinal injuries as a result of the fall.
After the incident the subcontractor arranged for formwork to be placed underneath the penetration.
In sentencing the defendants, Magistrate Stephen Courtney indicated the swift manner in which the hazard was dealt with showed how easily the incident could have been prevented. He indicated the risk was “glaringly obvious”, the offending was serious, and the consequences could have been catastrophic.
The Magistrate did not accept the submission of the subcontractor that the offending was a mere oversight of not including it in the SWMS. He stated the duty of care owed by the defendants was not one which could be “contracted out of.” He indicated they had entered contracts to complete the work, expecting profit from it, and knew of the duty they owed in undertaking it.
In sentencing the principal contractor, the Magistrate held that deterrence was a relevant consideration and that, despite the company being in administration, specific deterrence remained a live consideration. He indicated that he had taken into account the previous indication of a plea of guilty, cooperation, remorse through the indication of the plea of guilty and no previous convictions.
In sentencing the subcontractor, the Magistrate accepted the risk of reoffending was low but said there was still a need to impose a penalty to deter others in the construction industry. He indicated he took into account the plea of guilty, cooperation, demonstration of remorse, and no prior history of breaches of WHS legislation.
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Section 32, duty 20(1), Work Health and Safety Act 2011
Section 32, duty 19(1), Work Health and Safety Act 2011