Company's failure exposed workers to risk of death or serious injury
A roofing company and its sole director were convicted of work health and safety offences after two workers were exposed to the risk of falling from a height of approximately 6.2 metres while working on incomplete scaffolding with missing planks on working decks.
The company pleaded guilty to failing to comply with its work health and safety duty and thereby exposing workers to risk of death or serious injury.
The director pleaded guilty to failing to exercise due diligence to ensure the company complied with its health and safety duty.
Background and the day before everything went wrong
The company provided roofing installation services and had approximately 24 employees. The director was the sole director of both the roofing company and another company engaged to supply and install the roof on a two-storey residence.
Two workers attended the site, where they began work on the roof, gaining access using scaffolding, which was incomplete as it was missing planks on the working decks.
One worker was a casual roofer who had progressed from labourer after a year of on-the-job training. The other was an operations coordinator whose usual tasks included booking jobs and liaising with clients—he wasn't supposed to be on site at all.
The principal contractor for the construction project engaged the roofing company to supply and install the roof and engaged another entity to install scaffolding.
The day before the incident, the roofer accessed the site and observed that the scaffolding was incomplete with missing planks on multiple working decks. He did exactly what he was trained to do—notified the company's office to request the builder to rectify the scaffolding and was advised that the principal contractor would fix it by the next day.
Later that day, the principal contractor told the company the scaffolding issues had been rectified, and it was safe for work to be completed.
Worker returns to find nothing fixed
The following morning, the roofer returned to the site and observed that the scaffolding was unchanged from the previous day—still missing planks, still dangerous. He called the company's office to inform them of this.
However, due to pressure from the builder to complete the job and the operations coordinator attending the site to help out, he proceeded with the work despite the unchanged conditions.
The operations coordinator attended the site to assist by passing tools and materials on the roof. They both accessed the roof by climbing from the balcony of the first floor before hoisting themselves up onto the roof. Neither was wearing a harness.
Shortly after, they were seen by a regulator inspector who also observed gaps in the site fencing with no locks, allowing unauthorised access. The incomplete scaffolding exposed both workers to a fall from approximately 6.2 metres.
Prior to the incident, the company had various systems in place, including safe work method statements, a management system identifying working at heights risks, and an expected practice that if safety issues arose, supervisors would call the director or general manager, who would then contact the builder to require issues to be resolved before roofing works commenced.
However, the general manager was overseas at the time.
Director overseas, general manager overseas, operations manager sick
At the time of the incident, both the director and general manager were overseas, and the daily operations manager had called in sick.
It was the first time the director and general manager had been away from the business at the same time. With the operations manager calling in sick, other staff supervised the management of the office, projects and labourers that day—none with the authority to stop work.
The company's documented safety systems were only available in English and couldn't be understood by the roofer. There were no steps taken to ensure he understood the contents. Additionally, the director failed to ensure that a site-specific pre-start risk assessment checklist was readily understood and used by workers, or that information, training and supervision was being provided to ensure this occurred.
Following the incident, the regulator issued the company with several improvement and prohibition notices. In compliance, the company implemented numerous systems, including inspection checklists, revised safe work method statements, engagement of safety consultants, weekly toolbox talks, and training courses for employees and contractors on working safely using harnesses.
Low objective seriousness due to unusual circumstances
The Court found that falls from height are notoriously common in the construction industry. The risk of falling was plainly foreseeable and the potential consequences of a fall of more than six metres must include fatal injury.
However, on the day in question, the company's ability to enforce safe work methods and provide supervision was impaired by the unavailability of multiple senior personnel.
The Court found the underlying issue giving rise to the failures was the absence of a supervisor on site. It was that circumstance that left the roofer to his own devices, including procuring the assistance of an administrative staff member.
The Court noted it was relevant that the roofer had made the appropriate decision not to perform the work the previous day and had again assessed the situation as dangerous and called the office to report this.
The principal contractor's provision of inaccurate information that the scaffolding defects had been rectified was central to the company's decision to have the roofer return to site. It was the pressure from the principal contractor that led the roofer to make a different decision than the day before.
The exposure of two workers to the risk was brief and the risk didn't materialise. Taking all these matters into account, the Court found the objective seriousness of the company's offence was in the low range.
Director had systems in place but failed on supervision backup plan
The director's offence was confined to the day of the incident when he was overseas. The Court found that preparation and planning were required for the director to meet his duty to exercise due diligence.
The director provided extensive evidence of systems the company had in place, demonstrating he had knowledge of work health and safety matters, understood the hazards and risks, and had devoted resources to establishing processes to eliminate or minimise risks.
The Court found the director was not operating with a high degree of disregard for his work health and safety obligations. However, the failure to ensure the company used appropriate resources and processes was largely a failure to ensure sufficient supervision was available when both he and the general manager were unavailable.
The director should have anticipated a scenario where the operations manager was unavailable and ensured other arrangements for supervision on site.
Given the narrow compass of the offence, the Court found the objective seriousness of the director's offence below the mid-range. The Court found two matters diminished the company's moral culpability.
First, the roofer's actions in calling the office the previous day demonstrated the company had implemented some safety systems and the roofer had received sufficient training. Second, the company appeared to have been actively misled by the principal contractor about the safety situation on site.
Director's personal tragedy factored into reduced moral culpability
Turning to the director, the Court accepted evidence about very significant challenges in his personal life during the months before the incident, together with evidence of his lessened ability to be present in the office during that period.
The Court accepted the director's personal circumstances were such that his ability to apply constant and earnest effort to his work responsibilities had been significantly compromised during that period.
His failure to ensure adequate supervision when both he and the general manager were absent must be viewed in that context. While not bearing on the objective seriousness of the offence, it reduced the director's moral culpability. The Court found general deterrence remained an important consideration for the company given the prevalence of falls from height in construction.
However, the position was different for the director. The extenuating personal circumstances that underpinned his offending and reduced his moral culpability were such that he was not an appropriate vehicle for general deterrence.
The Court found that while specific deterrence remained relevant, the weight it should carry was greatly diminished for both offenders.
Unusual case doesn't warrant reputational damage
According to the case, neither the company nor director had any prior convictions and were otherwise of good character. The extensive steps they took after the incident demonstrated this. The Court found the offenders were unlikely to reoffend and had good prospects of rehabilitation.
Both had shown remorse, accepted responsibility, and acknowledged the failures that led to the risk of injury or death to workers.
Both entered guilty pleas and the Court found them entitled to a 25% discount on penalty reflecting the utilitarian value of their early pleas.
The Court noted evidence of efforts to cooperate with the regulator's investigation, finding those efforts extended beyond bare compliance with regulatory notices.
The prosecutor sought an adverse publicity order against the company in the form of a public notice published in a major newspaper. The Court found this was not an appropriate case for such an order, bringing as it would inevitable reputational damage.
The offending occurred in particularly unusual circumstances both because of the number of senior staff unavailable on the morning of the incident, and because the company appeared to have been actively misled by the principal contractor about the state of the scaffolding.
Fines reduced for guilty plea and company's financial capacity
The Court noted the company's capacity to pay was relevant but not decisive. The company asked the Court to consider the size and scope of its business and that much of its income was used for operational expenses.
The company noted it would be required to pay prosecutor's costs and submitted that a significant fine could impact its ability to continue employing its present staff.
The Court accepted evidence of trading losses in each of the three previous years. The Court was satisfied that an adjustment should be made to the otherwise appropriate fine to reflect the company's inability to pay a significant fine.
No submission was made concerning the director's capacity to pay a fine. The Court convicted the company and imposed a fine after reductions for the guilty plea and limited capacity to pay. The Court convicted the director and imposed a fine after reduction for the guilty plea.
