On 6 May 2022, two construction companies and their directors were sentenced in the Noosa Magistrates Court following a four-day hearing, for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The principal contractor and its director were charged with having failed to comply with their respective duties under section 20 and 27 of the Act. A subcontractor, Multi-Run Roofing Pty Ltd (‘Multi-Run’) and its director were charged with having failed to comply with their respective duties under section 19(1) and section 27 of the Act. The principal contractor was charged $35,000 and each of the directors were fined $5,000. Multi-Run was fined $60,000 and a conviction was recorded.

Multi-Run was engaged by the principal contractor to undertake work at a commercial construction site, involving the removal of roof sheets from the roof of an existing commercial shed. Multi-Run influenced or directed the activities of workers carrying out work on the roof. The roof of that shed was 5.1 metres high with a pitch of approximately 5 degrees. The principal contractor maintained management and control of the construction site. The director for Multi-Run and the director for the principal contractor each made decisions that affected the activities of the business.

Prior to that work commencing, the site manager for the principal contractor, met with the director of Multi-Run and they, on behalf of the companies, agreed on a system of work to be adopted for that work activity. In accordance with the system of work agreed, an elevated work platform (‘EWP’) was positioned parallel to the shed roof, with the platform raised so as to be alongside the gutter and edge of the shed roof. The roof sheeting was to be carried by workers walking along the screw line on the surface of the roof towards the edge of the roof. As workers approached the edge of the shed roof, they were to place the removed sheets onto the EWP. Once a number of sheets had been placed on it, the EWP was then lowered to the ground so that the sheets could be removed, before the EWP was raised to the roof level again.

On 5 December 2014, a number of workers were present on the roof of the shed at the workplace and engaged in the work activity of removing the sheets. A Senior Inspector for Workplace Health and Safety Queensland visited the workplace. He observed those workers working on top of a roof, a ladder located to a side of the roof and an EWP the floor of which was level with the roof line at the front of the roof. The only form of edge protection or other fall prevention method used in relation to the work activity at the workplace on 5 December 2014 was the moveable EWP. This did not always provide edge protection, namely when it was lowered.

In sentencing the defendants, Magistrate Chris Callaghan had regard to the maximum penalty and the nature and seriousness of the offence. While his Honour observed the Queensland community did not need to be protected from the defendants, there was a need for denunciation and general deterrence loomed large.

His Honour had regard to the prevalence of breaches of this section of the legislation, noting that it is still the same offence even if no injury has resulted. Despite that, it was significant that, fortunately, no one was injured as a result of this offending.

In terms of blameworthiness, his Honour considered Multi-Run and its director were to blame for the offending to a large extent, with the principal contractor and its director to blame to a lesser extent, having regard to their engagement of an experienced site manager. His Honour observed the defendants did not get the benefit of a reduction in penalty, having contested the matter and been found guilty.

Regard was had to Multi-Run’s previous conviction for a Category 1 offence, concerning offending that occurred in July 2014 for which it was fined a sum of $1 million. Multi-Run should have been alerted to the risk as a result of that earlier incident. Multi-Run was noted to be more culpable than the principal contractor as a result, acknowledging that Multi-Run’s previous conviction was not in place at the time of the present offending.

It was acknowledged that the director of Multi-Run had been previously charged with an offence for which they spent three months in custody, before being released and then acquitted after a retrial. His Honour observed that the law says they should not have spent that time in custody, so took that into account in their favour. His Honour observed that the director of Multi-Run was of good character, but Multi-Run was not, having regard to its previous conviction.

Regard was had to the character references tendered for the director of the principal contractor, which demonstrated their good character. That good character was noted to flow to the principal contractor. The principal contractor had held a building licence since 1984. The director of the principal contractor has a significant illness and is dependent upon treatment. It was observed that the principal contractor and its director provided assistance to law enforcement, including through participating in full voluntary interviews. There was noted to be no issue with the capacity of the principal contractor and its director to pay a fine.

His Honour observed the comparative cases referred to by the parties to be different, in that there was no injury in the present case and the culpability of the principal contractor was lesser than the defendants in those comparatives. The judgment of his Honour Judge Morzone QC in the matter of Bennett Developments was considered to not be of a great deal of help as it involved a death. The transcript of the sentencing remarks in a previous Magistrates Court matter were observed to be of some assistance as that concerned sentencing after a trial, although it involved a worker sustaining serious injury.

In relation to the costs claimed, his Honour considered the defendants should not have to pay anything towards the expert report obtained, having regard to the findings made about aspects of that evidence. However, it was considered appropriate that the defendants pay the amount claimed for the expert’s attendance at court.

His Honour rejected the claim by counsel for the principal contractor that the costs to be awarded to the prosecution should be deducted by $5,000 to account for some of the cost incurred by the defendants, as a result of the prosecution’s unsuccessful application for a warrant on the third day of trial and the early adjournment granted to allow the prosecution a further opportunity to affect service. His Honour observed the prosecution had not claimed scale costs for that day and there was no power in the Justices Act 1886 to allow this form of deduction. Total scale costs and disbursements were calculated to be $7,355.43, with that sum to be split between the four defendants.

OWHSP contact: enquiries@owhsp.qld.gov.au