Details of successful prosecution against E226568 - Individual

Incident description

The defendant held duties under s.27 (1) of the Work Health and Safety Act 2011 being an officer of a construction company that also undertook demolition works and asbestos removal.

The defendant was one of three directors of the company which had been operating for 20 years. He was responsible for the demolition and asbestos removal works undertaken. The company also carried out new construction works which were the responsibility of another working director. The remaining director was responsible for administrative activities concerning both aspects of the company's work.

The defendant had, on behalf of the company, tendered for and was subsequently contracted to carry out demolition and asbestos removal works at a state school. The works consisted of demolition and asbestos removal of a demountable classroom. The defendant was the person responsible for ensuring the completion of a safe work method statement (SWMS) and for the selection of appropriate plant to carry out these works. He was also responsible for supervising the casual workers the company engaged. The SWMS was inadequate. It did not adequately describe the demolition works and the manner it was to be safely undertaken. Specifically how structural steel roof purlins were to be removed. This was required to be undertaken at height.

Inadequate and defective mobile scaffold, owned by the company, was brought to the site and the defendant permitted two of the workers to work from it. The scaffold was inadequately erected by the workers. It was not fitted with all its structural bracing, had no side rails fitted around the work platform, did not have all the scaffold working deck platform fitted and the castor wheel brakes were defective in that they could rotate with the brakes applied.

Court result

On 24 July 2018, the defendant pleaded guilty in the Cairns Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet his work health and safety duties and was sentenced. Magistrate Alan Comans fined the defendant $12,500. His Honour also ordered professional and court costs totalling $1092.55. The court ordered that no conviction be recorded.

In reaching a decision, Magistrate Comans stated the breach commenced with the inadequate preparation of the SWMS which did not adequately detail the demolition works and how they were to be undertaken, particularly the work at height. His Honour noted the defendant acknowledged he was responsible for ensuring the preparation of that document and that the defendant was the person responsible for checking the scaffold was adequate and for organising, as required, maintenance to be undertaken. This had not occurred. The defendant had accepted he was responsible for site safety. The Court accepted he relied too heavily on the workers and their previous experience rather than adequately supervising their work.

In deciding penalty, Magistrate Comans took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered a timely plea of guilty. He considered the breaches were serious, resulting in a worker sustaining injury. General deterrence was relevant and post-incident measures were not especially mitigating in that the Act required pro-active steps to be taken by officers. He considered the breach to be at the mid-level of objective seriousness.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the construction industry where there is exposure to risks from falls from height, duty holders should consider the following:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• Work at heights
• How to manage work health and safety risks code of practice 2021 (PDF, 0.65 MB)
• Managing the risk of falls at workplaces code of practice 2021 (PDF, 3.9 MB)

Details