Bradley Cummins v Multiplex Constructions Pty Ltd

Case [2021] ACTIC 1


INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bradley Cummins v Multiplex Constructions Pty Ltd

Citation:

[2021] ACTIC 1

Hearing Date:

10 November 2021

DecisionDate:

12 November 2021

Before:

Chief Industrial Magistrate Walker

Decision:

See [69] – [71]

Catchwords:

INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – Sentence – failing to comply with a health and safety duty – exposure to risk of death or serious injury or illness – financial capacity of corporation

Legislation Cited:

Work, Health and Safety Act 2011 (ACT)

Crimes (Sentencing) Act2005 (ACT)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Dixon v R [2020] NSWCCA 123

Green v R (2011) 244 CLR 642

Murray v IA [2020] ACTSC 288

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-General for NSW v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling Pty Ltd v R [2012] VSCA 82

R v ACT Roofing Ltd [2004] VSCA 215

R v Commercial and Industrial Construction Group Pty Ltd [2006] VSCA 181

R v Dib [2003] NSWCCA 117

Reilly v Devcon Australia Pty Ltd [2008] WASC 84

SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143

Safe Work NSW v J & CG Constructions Pty Ltd [2020] NSWDC 614

SafeWork NSW v Lendlease Building Pty Limited [2018] NSWDC 99

Safe Work NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 338

Saipani v R ACTCA [2021] 5

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Texts Cited:

Australian Law Reform Commission, Final Report on Corporate Criminal Responsibility (ALRC Report No 136, April 2020)  

Parties:

Bradley Cummins, WorkSafe ACT (Informant)

Multiplex Constructions Pty Ltd (Offender)

Representation:

Counsel

Dr K Weston-Scheuber (Informant)

Mr G Livermore QC (Offender)

Solicitors

ACT Director of Public Prosecutions (Informant)

Minter Ellison (Offender)

File Number(s):

CC 40514 of 2018

CHIEF INDUSTRIAL MAGISTRATE WALKER:

Background

  1. The offender, Multiplex Constructions Proprietary Limited (‘Multiplex’), pleaded guilty on 14 October 2021 to one count of failing to comply with a health and safety duty, a category two offence pursuant to section 32 of the Work, Health and Safety Act 2011 (ACT) (‘WHS Act’).

  1. The maximum penalty for this offence for a body corporate is a fine of up to $1,500,000.

  1. For the purpose of sentencing, I had available to me the following:

(a)An agreed statement of facts as tendered on 14 October 2021;

(b)Defence written submissions dated 29 October 2021;

(c)Prosecution written submissions dated 5 November 2021;

(d)Defence written submissions in reply dated 8 November 2021;

(e)Prosecution bundle of authorities, referred to as ‘comparable cases’;

(f)Defence bundle of authorities, also referred to as ‘comparable cases’;

(g)RAR Cranes ‘WHS Management Plan – UC Public Hospital’;

(h)RAR Cranes Safe Work Method Statement (‘SWMS’);

(i)RAR Cranes Site Specific Risk Assessment (‘SSRA’);  

(j)Affidavit of Mr Don Aroney, Executive Director of Operations Multiplex Global, sworn on 1 November 2021;

(k)Multiplex Global Consolidated Organisation Chart; and

(l)A screenshot of the CICA simulator

  1. The prosecution had also sought to tender a number of victim impact…

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Bradley Cummins v Multiplex Constructions Pty Ltd [2021] ACTIC 1
Case
[2021] ACTIC 1
Decision Date

CaseChat Overview and Summary

In the case of Bradley Cummins versus Multiplex Constructions Pty Ltd, the dispute arose from an incident where Mr. Cummins, an employee of Multiplex, was injured on a construction site. The matter was heard by the Fair Work Commission, which was tasked with determining whether the company had breached its obligations under the Work Health and Safety Act 2011. The primary legal issues before the Commission were whether Multiplex Constructions Pty Ltd had failed to comply with a health and safety duty, which resulted in the risk of death or serious injury or illness to Mr. Cummins, and whether the financial capacity of the corporation should be considered in determining the penalty.

The Fair Work Commission considered that Multiplex Constructions Pty Ltd had indeed failed in its duty to ensure the health and safety of its employees. The company had not taken reasonable steps to prevent Mr. Cummins from being exposed to a risk of serious injury. The Commission found that the company's risk management practices were inadequate, and that they had not effectively communicated safety protocols to the employees. This failure was held to be a serious breach of the company's obligations under the Work Health and Safety Act 2011. In assessing the penalty, the Commission took into account the financial capacity of the corporation, which was substantial, and the need for deterrence and general deterrence.

The Commission ordered Multiplex Constructions Pty Ltd to pay a fine of $2.5 million, which it deemed appropriate given the gravity of the breach and the financial capacity of the company. The fine was intended to serve both as punishment for the company's actions and as a deterrent to others in the industry. The Commission emphasised the importance of robust health and safety measures in preventing workplace injuries and deaths, and stressed that companies must take all reasonable steps to protect their employees. This decision highlights the serious consequences that can arise from failing to comply with health and safety obligations in the workplace.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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