On 20 March 2023, a roofing company was sentenced in the Beenleigh 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 section 19(1) of the Act.
The defendant operated a residential and commercial roofing business and was subcontracted by the principal contractor, whom had been engaged by another company, to remove and replace the existing roof at a premises in Beenleigh, which was operating as an abattoir. The work included the removal and replacement of roof purlins with work moving to different areas of the abattoirs as the projects commenced and continued.
On 16 March 2021, works moved to the roof of the area operating as a warehouse or storeroom, referred to as the ‘palletising area’. Two workers employed by the defendant, one of which being the injured worker, were on site that day. There were no supervisors. The injured worker had been working for the defendant for 8 months.
The work that day required workers to stand on the roof. The roof was flat and consisted primarily of cold room panels which could withstand a weight ratio of 140kgs per panel. The roof had four existing skylights that had been patched by the principal contractor 15 years prior by cutting a portion of a cold room panel and fitting it in the skylight casing. There was a toolbox talk held that day but there was no record of any discussion of the risk posed by the skylights. There were no markings, signs or edge protection around the skylights, workers weren’t warned about the dangers of standing on or in them, they were not wearing harnesses and there was no catch barrier installed.
Staff from another company were also on site that day and they discussed with the defendant’s workers how they were going to install the sprinkler pipes around the skylights. The two workers were required to remove the timbers from around the skylight housing to ensure the new roof would sit flush with existing purlins and housing. They stood on the patched panel, thinking it was all part of the one continuous cold room panel. The injured worker got in the third skylight and was removing the timers. He passed his drill to his co-worker after removing one of the timbers when the skylight gave way beneath him. He fell 6.06 metres onto the concrete floor below, suffering fractures to his femur, hip, pelvis, and spine.
The defendant plead guilty to the complaint as laid.
In sentencing, Magistrate Mossop took into account the defendant’s timely plea of guilty. Her Honour had regard to the purpose of the Act as well as comparable decisions referred to by the parties, accepting that workers should be given the highest level of protection from harm arising at work. Her Honour went further, noting that duty holders must have regard not only for the “ideal worker, but also one who is careless, inattentive, or inadvertent”.
In determining culpability, her Honour concluded that the offending was of a serious nature and that the potential consequences were more serious than those that eventuated. Her Honour determined that the risk which arose was not evident, foreseeable, or probable, and was therefore distinct from the cases considered, however she did note that there was still a degree of possibility. Her Honour accepted that the defendant took steps post-incident to avoid unforeseen risks by conducting site inspections of all roofs to be worked on and noted that such measures were not burdensome given the consequences of the risk.
Her Honour found that the defendant had not acted in a manner that totally disregarded workplace safety. There had been an execution of a Safe Work Method Statement (‘SWMS’) with a Job Safety Analysis, and while the roofing tasks addressed within the document did not include any reference to skylights, she found that the defendant was mindful of its WHS duties and was not reckless in its behavior, but merely lacked vigilance.
Her Honour did not accept that there was no negligence on the part of the employees, stating that “they did not abide by the SWMS which imposed a duty on them to which they signed as having read”. Whilst her Honour accepted that that the defendant owed its workers a high duty of care to protect them from injury, she considered that the workers did not take proper steps to ensure their own safety. Her Honour continued, noting that the employees had failed to notify their supervisor of the unidentified risk and had not mentioned it at the site toolbox meeting, as required by the SWMS.
Her Honour considered the existing SWMS to be overly detailed and complex which did not ultimately provide for a practical or effective safety system. Her Honour considered that the SWMS were more concerned with ensuring technical compliance with the WHS requirements, rather than being practical. She noted that while this did not excuse the employer’s strict liabilities to address safety requirements in order to protect workers, it demonstrated the failings of a safety practice that has become too complicated.
Following this, her Honour accepted that the defendant had tried to comply with its work health and safety duties by utilizing the SWMS, but still failed to provide for the risks of the skylight voids; unfortunately relying on the principal contractor and the workers to provide all information and abide by the SWMS.
In mitigation, her Honour also had regard to the defendant’s post-incident conduct, noting that the defendant now acts proactively and vigilantly to identify unexpected voids and assess all risks of falls from height, that it updated the SWMS and ensured the presence of supervisors at job sites to inspect and identify hazards. Her Honour accepted that the defendant had cooperated with the investigation, it had provided an interview with the director who made admissions, provided support to the injured worker, expressed remorse, had no prior work health and safety violations, and had operated in the same industry for over 20 years without committing an offence.
At the conclusion of her remarks, her Honour took into account the financial records of the defendant, noting the business was small in size, family owned and operated and while currently solvent, was not financially stable due to supply chain disruptions and increased costs of material. In light of these factors, as well as several comparable decisions referred to by her Honour, a fine of $30,000 was imposed on the defendant along with $1,601.40 in costs. Her Honour referred the fine to SPER, but ordered that costs be paid on or before 20June 2023.
OWHSP contact: email@example.com
Section 32 of the Work Health and Safety Act 2011