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Bradley Cummins v Multiplex Constructions Pty Ltd

Bradley Cummins v Multiplex Constructions Pty Ltd

Case [2021] ACTIC 1 12 November 2021

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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

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’).

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

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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bradley Cummins v Multiplex Constructions Pty Ltd

Details

AGLC: Bradley Cummins v Multiplex Constructions Pty Ltd [2021] ACTIC 1
Case: [2021] ACTIC 1
Decision Date: 12 November 2021

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