On 30 October 2024, a company specialising in the manufacture of insulated panels was sentenced in the Mackay Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty. A subcontractor (an individual as a person conducting a business or undertaking) engaged by the company also pleaded guilty to breaching the same provision.

In November 2021, the defendant company was engaged by a large abattoir in Bakers Creek to supply and install a refrigeration panel ceiling in the frozen palletising area of the abattoir, with the work to be completed over the Easter long weekend in April 2022. The defendant company subsequently engaged the sole trader to complete the work, including to remove the existing ceiling panels and install the new ones. The sole trader was regularly subcontracted to carry out work for the defendant company, and employed various panel installers. The ceiling was approximately 3.4 metres high, such that the work was ‘high-risk construction work,’ requiring a Safe Work Method Statement (‘SWMS’) to be prepared. The subcontractor and his workers attended the abattoir on 15 April 2022 to commence the work. While the defendant company had provided various SWMS (including on installing ceiling panels, but not on removal of same) to the abattoir, it had not provided any SWMS to the subcontractor, and no one from the defendant company was on site. The defendant company described the failure to provide the SWMS as an oversight. The subcontractor’s workers were not provided with any clear direction or instruction as to how to carry out the work.

The ceiling and existing panels were in poor condition, including evidence of rust. The subcontractor instructed one of his workers to work in the ceiling space, releasing the panels. Other workers told the subcontractor that this was unsafe, but he insisted. The worker in the ceiling was not provided with a harness or any fall protection measures, and, given the confined space, he had to squat. At one point, workers on the ground were struggling to get a panel out, so the subcontractor instructed the worker in the ceiling to stomp on it. As the panel released, the worker started to crawl back, and when he got to the third panel back from the one that he had stomped on, the panel released and he fell down with it, falling over 3 metres to the concrete below. He suffered significant injuries, including fractures to his spine, was hospitalised for one night and has been unable to return to work.

The work was hazardous in that it posed a risk to the health and safety of workers, namely the possibility of death or serious injury if workers fell through the ceiling. The primary control for the management of the risk was ensuring workers used safety harnesses when working at height. The defendant company was charged with failing to comply with its health and safety duty through, amongst other things, failing to implement a SWMS, failing to ensure that appropriate control measures were implemented before work commenced on the roof and failing to prohibit workers from commencing work until such measures were in place. The subcontractor was charged with failing to comply with his health and safety duty through failing to:

• implement a SWMS as required;
• develop and implement a safe work procedure;
• ensure controls were implemented before work commenced, including the use of a harness;
• provide training, instruction and supervision; and
• prohibit workers from commencing work until controls were implemented.

Post-incident, the defendant company arranged for the workers to sign the relevant SWMS, and ultimately another contractor was engaged to complete the work, with a Project Manager from the defendant company in attendance. As well, its SWMS for removal of ceiling panels was amended.

In sentencing, Magistrate Dwyer had regard to each defendant’s early plea of guilty. His Honour considered that the defendant company was a large company which had been in business for 60 years without any previous convictions. However, his Honour found it was a serious breach and it was difficult to understand how a company of the defendant’s standing could allow it to occur. His Honour also considered the impact statement provided by the injured worker, including his chronic physical and psychological issues. A number of authorities were considered, and after considering all of the circumstances his Honour convicted and fined the defendant company $80,000 and exercised his discretion to not record a conviction.

Magistrate Dwyer was scathing in his remarks during sentencing of the subcontractor. His Honour considered that the pressure for the job to be completed on time was a significant factor, but also that it was a significant error of judgment on the subcontractors part. His Honour found that the subcontractor was highly culpable, that it was an inherently dangerous job, that he was on site and warned about the dangers by workers and also must have known of the risks given his previous experience. Despite this, the subcontractor blatantly and arrogantly disregarded his duties for the sake of time, and deliberately put the safety of his worker at risk and in an extremely dangerous position, thereby completely abrogating his responsibility. His Honour considered the various character references provided to him, noting that the subcontractor was otherwise of good character. However, his Honour found that general and specific deterrence were both relevant, even in the absence of previous convictions, and considered that no regard should be given to the subcontractor subsequently changing his work practices as he was merely doing what he should have done before. Magistrate Dwyer convicted and fined the subcontractor $50,000, and exercised his discretion to not record a conviction.

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