In another salient reminder for employers of the consequences of failing to comply with their duties under WHS laws, a construction business operating in the ACT has recently been fined $225,000 by the ACT Magistrates Court for failing to comply with its duty of care.
Facts
In May 2022, Mr Sidhu, an employee of JB Slab Pty Ltd, was trapped underneath a wall which had collapsed due to improper construction. Mr Sidhu had been in Australia for two weeks at the time of the incident and spoke little to no English.
Mr Sidhu was given no formal training on commencing work with JB Slab and did not appear to have a background in the work being undertaken.
A WorkSafe ACT inspection at the work site revealed a range of safety issues at the site.
Subsequent to the incident Mr Sidhu complained of neck and back pain for which he was prescribed medication. A later medical assessment concluded that Mr Sidhi had likely suffered contusions to his back.
Proceedings
Proceedings were brought against JB Slab in the ACT Magistrates Court after JB Slab was charged with an offence of failing to comply with a health and safety duty under section 32 of the Work Health and Safety Act 2011 (ACT) (WHS Act).
The relevant duty that JB Slab allegedly failed to comply with was that set out in section 19(1)(a) of the WHS Act, which imposes on an employer a duty of care to ensure, so far as is reasonably practicable, the health and safety of its workers.
Findings
The Court found that JB Slab failed to comply with its duty of care to Mr Sidhu under the WHS Act by:
- failing to implement and enforce an adequate Safe Work Method Statement identifying the risk of formwork collapse and the relevant control measures, thereby creating an ‘inherently unsafe’ work environment;
- failing to ensure its workers had competence in the area or had received proper training;
- failing to conduct safety meetings or other safety discussions; and
- failing to use adequate materials to brace the formwork as instructed by the manufacturer (for example, using wood instead of steel).
Penalty
The maximum penalty for the breach of the WHS Act in which JB Slab was found to have engaged was, at the time of the incident, $1.5 million.
In determining the penalty to be imposed on JB Slab, Magistrate Lawton referred to various authorities that set out the principles with respect to the assessment of risk, including relevantly:
- the risk to be assessed is not the risk of consequence to the extent that a worker is in fact injured, but rather the risk which arises from the failure to take reasonably practicable steps to avoid the injury from occurring (at [27]); and
- the fact that an injury has occurred does not necessarily mean that the seriousness of the breach should be assessed in that context (at [29]).
In relation to the seriousness of the risk posed by JB Slab’s conduct, Magistrate Lawton determined that:
- the risk of the worker being seriously killed or injured as a result of the incident was high;
- taking appropriate measures to avoid risk ‘would not have entailed significant burden or costs in the circumstances‘; and
- although a certifier approved further work on the site (an approval that the Court described as ‘substandard‘), JB Slab’s ‘moral culpability and responsibility should not be reduced because of the certifier’s actions’.
Magistrate Lawton considered the ‘starting point’ for the penalty to be imposed on JB Slab was $300,000 but reduced this amount by 25% for the early guilty plea by JB Slab and on account of the remorse and contrition it demonstrated.
Takeaways from this decision
To minimise liability to breaches of the WHS Act, workplaces should assess all potential risks in work being undertaken and be able to demonstrate that it has taken reasonably practicable steps to mitigate the occurrence of such risks.
Particular emphasis is placed on ensuring that there are appropriate safety systems in place and that they are being enforced, that workers have experience in the work being undertaken and that adequate training and supervision is provided.
Read the judgment here: Agius v JB Slab Pty Ltd – ACT Magistrates Court
This article was written by Alison Spivey, Partner and Dominic Leal Smith, Law Graduate.
