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Employer convicted and fined for WHS breach

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Workers rode scaffolding to the ground

A NSW scaffolding business has been convicted and fined after it pleaded guilty to an offence under the Work Health and Safety Act 2011 (NSW) (WHS Act) (SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442).

A NSW scaffolding business has been convicted and fined after it pleaded guilty to an offence under the Work Health and Safety Act 2011 (NSW) (WHS Act) (SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442).

The Sydney-based scaffolding business pleaded guilty to failing to comply with its primary duty under s19 of the WHS Act, when it exposed workers to a risk of death or serious injury.

The incident that resulted in the conviction and fine involved a major scaffolding collapse in 2014 during which workers had to take evasive action to protect their lives and limbs. One worker dove under a truck to protect himself from the collapse, two others had to flee for their lives, while another worker (who was on the scaffolding at the time of the collapse) jumped from the scaffolding and onto the balcony of the building. Terrifyingly, two other workers were forced to ride the scaffolding seven storeys to the ground during the collapse.

Some of the workers suffered soft tissue injuries in the incident and one sustained a cut requiring stitches. Significantly, one of the workers who rode the scaffolding to the ground during the collapse developed post-traumatic stress disorder as a result of his ordeal.

The scaffolding in question was part of a 14-storey scaffolding system surrounding a tower building in Mascot. The collapse occurred after the removal of scaffolding on two sides, creating instability in the adjacent, street-facing scaffolding structure.

When the collapse occurred, parts of the scaffolding fell across a public footpath and brought down a section of powerlines causing a telegraph pole to lean. The powerlines came into contact with a member of the public’s car, causing a risk to her safety and damage to her vehicle.

In determining the appropriate penalty, the court hearing the matter examined the systems of work of the scaffolding business and the circumstances prior to the collapse. The court noted that:

  • After the installation of the scaffolding around the tower, some bowing was observed, indicating instability. Repairs to the scaffolding were subsequently undertaken, but the scaffolding company did not issue a direction for workers to cease work and clear the site until the scaffolding could be inspected by a qualified person and declared safe.
  • Other trades on the site had made unauthorised alterations to the scaffolding. The scaffolding business became aware of this and reinstalled some of the scaffolding ties that had been removed. The scaffolding business asked that the issue be addressed at tool box talks, but there was only evidence of it being raised at one tool box talk.
  • There was no documented plan detailing how the street-facing scaffolding would be braced or the process by which the scaffold would be dismantled.
  • The scaffolding business did not request that an engineer review its scaffolding plan before the scaffold was constructed or altered. Nor did it have an engineer review a plan for dismantling the scaffolding where the street-facing scaffolding face would remain.

The court found that the risk of death or serious injury to workers flowing from the scaffolding business’s breach of the WHS Act was extremely high. The court noted that there was also a risk of death or serious injury to passers-by, not just from the scaffolding parts but also from the powerlines brought down in the collapse.

The court held that the problems with the scaffolding were apparent to the scaffolding business because instability and bowing had been observed, and it knew that structural parts of the scaffold had been removed by other trades.

Further, the court held that there were no proper plans for workers to follow in relation to the street-facing scaffold and that the removal of the two adjacent sides of scaffolding created further instability.

The court commented,

While no serious physical injuries were occasioned, a minor miracle considering that two of the workers rode the scaffold seven storeys down the ground, [one worker] has suffered post-traumatic stress disorder of a most serious kind…The scene outside of the site could have been one of absolute carnage, if those underneath the scaffold could not have taken the evasive action which they did.

In reaching its conclusion as to an appropriate penalty, the court acknowledged that the scaffolding business had no previous convictions and was of good character. It had taken steps since the incident to demonstrate its commitment to safety, was unlikely to re-offend and had assisted law enforcement agencies and cooperated with the prosecutor.

The court ordered that the scaffolding business pay a fine of $225,000 and the prosecutor’s costs.

 

Lessons for employers

In this decision, the court commented that, “Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements.”

In short, employers must do everything reasonably practicable to ensure that they comply with their WHS duties.

This includes acknowledging warning signs and doing all things possible to ensure that those signs do not result in safety incidents. This includes when employers become aware of unsafe conduct committed by third parties.

Employers must treat workplace safety seriously and take preventative action. Failure to do so can result in prosecutions and, more importantly, injury to workers.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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