Cummins v Lifestyle Homes (ACT) No. 1 Pty Ltd
[2018] ACTIC 4
•20 November 2018
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cummins v Lifestyle Homes (ACT) No. 1 Pty Ltd (ACN 168 332 429) |
Citation: | [2018] ACTIC 4 |
Hearing Date: | 6 November 2018 |
DecisionDate: | 20 November 2018 |
Before: | Magistrate Theakston |
Decision: | See paragraph 23 |
Category: | Sentence |
Catchwords: | INDUSTRIAL LAW – Sentence – non-compliance with Work Health and Safety Regulations 2011 (ACT) – unlicensed employees – failure to comply with Australian Standards – incorrect signage – incomplete scaffolding – accumulation of waste material |
Legislation Cited: | Crimes Act 1900 (ACT) ss 374 (7), 375 (15) Crimes (Sentencing) Act 2005 (ACT) ss 15, 17 (3) Legislation Act 2001 (ACT) s 190 Magistrates Court Act 1930 (ACT) s 19 |
Regulations Cited: | Work Health and Safety Regulations 2011 (ACT) regs 40, 78, 85 (1), 163 (1), 308, 314 (h) |
Cases Cited: | Comcare v Commonwealth of Australia [2007] FCA 662 |
Parties: | Bradley Cummins (Informant) Lifestyle Homes (ACT) No. 1 Pty Ltd (ACN 168 332 429) (Defendant) |
Representation: | Counsel Ms S Beaumont (Informant) Mr D Robens (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Clyde & Co (Defendant) | |
File Numbers: | CC 40745 of 2018 CC 40746 of 2018 CC 40749 of 2018 CC 41080 of 2018 CC 41081 of 2018 CC 41082 of 2018 |
MAGISTRATE THEAKSTON:
Background
The defendant is before the Court for sentence having pleaded guilty to the following charges in contravention of the Work Health and Safety Regulations 2011 (ACT):
(a) CC18/40745 – allowing a worker to carry out high risk work while unlicensed (10 October 2017) contrary to reg 85 (1);
(b) CC18/40746 – failing to comply with Australian Standard AS/NSW 3012:2010 (Electrical installations – Construction and demolition sites) (10 October 2017) contrary to reg 163 (1);
(c) CC18/40749 – failing to install a sign with the principal contractor’s contact details (10 October 2017) contrary to reg 308;
(d) CC18/41080 – failing to maintain a workplace so as to allow for entry, exit and movement about without risk to health and safety (10 October 2017) contrary to reg 40;
(e) CC18/41081 – failing to put in place arrangements ensuring compliance with Division 3.2.10 (Falling objects) (10 October 2017) contrary to reg 314 (h); and
(f) CC18/41082 – failing to safely manage risk of falls (10 October 2017) contrary to reg 78.
As the offender is a body corporate, the offences carry a maximum penalty of $30,000, save for charges CC18/40745 and CC18/40749 which carry a maximum penalty of $18,000. Those maximums are available to this Court, as the offences are summary in nature, (see s 190 of the Legislation Act 2001, s 19 of the Magistrates Court Act 1930 and s 15 of the Crimes (Sentencing) Act 2005), and therefore the limitations applicable to indictable offences dealt with summarily do not apply, for example the maximum penalties specified at ss 374(7) and 375(15) of the Crimes Act 1900.
The defendant entered pleas of guilty to the charges either at the first or third appearance. I accept the pleas were entered at an early opportunity and I take into account the utility such action provides to the Court and others, and that those pleas compliment the remorse and acceptance of responsibility demonstrated elsewhere by the defendant. I will discount the penalties I would have otherwise imposed by 25%.
The Circumstances of the Offences
The facts are described within an agreed Statement of Facts and are supplemented by evidence given by the WorkSafe ACT Inspector, Christopher Flanagan. In early October 2017 a random inspection was conducted at a building site, known as Opus, where the defendant was building 63 residential units in four separate blocks. During that inspection, Mr Flanagan made the following observations:
(a)A worker was observed to be incorrectly performing dogging work for a small mobile crane known as a telescopic handler. That role required a high-risk licence and the worker did not hold, and never had held, that licence. There had been discussions between that worker and the managers of the defendant about the need for him to obtain that licence. Mr Flanagan directed him to stop work.
(b)The temporary electrical distribution boards erected on the site did not comply with the relevant standard, and there were a number of extension leads on site which were being used incorrectly. In particular, the boards’ earth leakage devices were not locked, leads from the boards extended through the partially opened cover – rather than through purpose built holes in the box, and the extension leads were on the ground – rather than suspended, and in places were wrapped around the scaffolding – rather than suspended on insulated hooks. Additionally, some of the distribution boards were not adequately secured, and some were not sufficiently accessible.
(c)The large sign at the front of the building site incorrectly identified a related company, rather than the defendant, as the builder.
(d)The site was littered with various building materials and waste. These were located in areas of access and egress, including on the scaffolding platforms. They impeded the workers from being able to enter, exit and move about the site without risk to health and safety, both under normal conditions and in the event of an emergency.
(e)Extensive scaffolding was erected around the buildings on the site, and was observed to be incomplete and non-compliant with the relevant standard. The components missing included diagonal bracing, external raker bracing to the top level, hand rail mesh guards, intermediate hop up decks, and platform boards. Additionally, some boards were not sufficiently fixed, and some showed signs of decay. The top level of scaffolding was also observed to have excessive movement. Further, there were no barriers protecting the scaffolding from vehicles moving within the site, and building materials were stored on the cross members at the base of the scaffolding. There was a consequential risk of items falling from the scaffolding.
(f)Associated with the way the scaffolding was assembled, there were numerous elevated edges throughout the site without barriers to prevent falls. Some of those locations involved drops greater than 4 metres and presented a clear risk of falls from height.
The Defendant’s Subjective Circumstances
The defendant is a company that undertakes residential construction in Canberra. It has been operating since 2014. At the time of the offences it had 25 employees, but has subsequently reduced its staff to 13. The defendant has no criminal history.
At the time of the offences the defendant had a range of written work health and safety policies and associated paperwork in place. This included:
(a)Work, Health and Safety Policy,
(b)Site Work, Health and Safety Management Plan,
(c)Safe Work Method Statements,
(d)Copies of High-Risk Licences,
(e)Plant Operator Competency and Skills Assessments,
(f)Documented toolbox talks every four weeks, and
(g)Documented safety inspections.
About a month before the WorkSafe inspection, the defendant engaged a Work, Health and Safety manager. That manager conducted a site inspection shortly after his appointment and identified a number of safety and compliance issues. Those issues included no pre-start check list for the mobile plant, missing safety certificates for the electrical distribution boards, extension leads being used while on the ground and the scaffolding inspections were not up-to-date.
Clearly, the processes envisaged by the defendant’s documentation and procedures, and the appointment of a safety manager did not translate into practices that avoided the above breaches on the day of the inspection.
Mr Gary Kelly, a director of the defendant, gave evidence on behalf of the defendant. He described the consequences of the WorkSafe inspection, including the steps subsequently taken by the defendant to comply with the relevant requirements. They included:
(a)Mr Kelly accepting full responsibility on behalf of the defendant during a record of interview with WorkSafe officials.
(b)A prohibition notice being issued during the inspection and lifted 13 days later.
(c)The defendant replaced underperforming staff, in particular the site foreman.
(d)The defendant replaced the scaffolding contractor, and the deficiencies with the scaffolding were rectified.
(e)The balance of the non-compliance issues were rectified following discussions with contractors and staff at toolbox meetings.
(f)Since the inspection, the defendant has taken on fewer projects, in order to ensure the same issues do not arise again.
(g)The defendant has implemented a more sophisticated contractor management system.
Mr Kelly initially suggested that he had attended the site a week or two before the WorkSafe inspection and had not noticed that the scaffolding had been incorrectly assembled. However, he ultimately agreed that when he attended the site, he was not there to check the scaffolding, had not inspected the scaffolding and was aware from the earlier report that the scaffolding may not have been compliant.
Consideration of Sentence
In this matter the following features are striking. The defendant conducts an ongoing local business in residential construction and prior to the inspection had on paper a range of appropriate work, health and safety processes. The WorkSafe inspection uncovered six separate breaches of the regulations, some of which had some potential to cause injury, and others that had a high potential to cause injury. In particular, the breaches in relation to the scaffolding, namely the risks of workers and objects falling, were particularly high in the circumstances. Those breaches exposed workers to immediate and proximate risk of very serious injury or death, and were risks that would have been obvious to an observer and had been brought to the notice of the defendant. They were also numerous in number. They were known risks, with the likelihood of manifestation and the seriousness of the consequences both being high.
Fortunately no one was injured as a result of any of the breaches. The defendant took decisive action to correct the breaches, including changing staff, contractors and processes.
My attention was drawn to the decision of Comcare v Commonwealth of Australia [2007] FCA 662 where Madgwick J, at (120), summarised the considerations relevant to sentencing in NSW occupational health and safety prosecutions:
120 Decisions under the cognate New South Wales Act refer to the following considerations among others:
(i)the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety;
(ii)it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable;
(iii)the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer;
(iv)the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety;
(v)a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision;
(vi)general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act;
(vii)employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety;
(viii)regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration;
(xi)the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category;
(x)the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.
The offences before the court are strict liability in nature and do not involve fault elements, for example intention or recklessness. Accordingly and consistent with Madgwick J’s observations above, any appreciation of the risk by the defendant must be an aggravating feature of an offence.
I was invited to exercise my discretion to not record convictions. Subsection 17(3) of the Crimes (Sentencing) Act 2005 provides three mandatory considerations in relation to that discretion, namely:
(a) the offender's character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
In the present case, there was no evidence of extenuating circumstances and therefore the third consideration provides little assistance.
The first consideration favours the exercise of that discretion. The defendant has no criminal history, there is no suggestion of similar issues in the past, the defendant had appropriate workplace safety documentation in place and is an ongoing local business.
For the second consideration, the same can be said for three of the six charges. In relation to failing to comply with standards for electrical installations, failing to provide a safe general workplace and failing to install a sign with the principal contractor’s details, are each of a relatively low objective seriousness. I say that because there was no immediate risk to the health or safety of those on site. Those charges involved the breach of discrete layers within a multi-layered system designed to protect the health and safety of persons who attended and worked on the site. This is the case even for the charge of failing to comply with standards for electrical installations. That is because, while injury was possible, the risk due to these breaches was relatively low due to the other layers of safety that remained in place. Those other layers included the use of earth leakage devices and the insulated extension leads. For those charges, the low seriousness of the offences favour the exercise of the discretion.
In contrast, the charges involving falling from heights, falling objects and allowing high risk-work to be carried out without a licence are, to my mind, much more serious. Even in the absence of additional failures, those breaches of themselves posed an immediate and significant risk to the health and safety of workers and others who attended the site. The state of the scaffolding, including its instability and missing components and the presence of numerous unguarded elevated edges meant that a moment of inattention by a worker could have resulted in a person or object falling from a significant height. The consequences of that would obviously be significant. Similarly, allowing the worker, who did not hold a high-risk licence, to perform dogging work created an immediate risk to that worker, as well as to others who may be nearby. The failure of the worker to appropriately perform that task was immediately apparent to Mr Flanagan when he attended the site.
As indicated above, it is also concerning that the defendant was put on notice about those more serious breaches, and that in any event the potentially serious consequences of those breaches were foreseeable.
Unfortunately, there was no evidence before the Court that quantified the costs of complying with the various obligations, compared with any costs saved by ignoring the breaches, for example contractual penalties or interest payable as a result of a delay in the completion of the project. Without that evidence, it is difficult for the Court to set, with any precision, a fine that would adequately, but not disproportionately, deter offending of this type.
In relation to the more serious offences, there is a clear need to denounce the conduct of the defendant and to send a message to employers generally, and to the building industry specifically, that there will be legal consequences of significance for breaching the Work Health and Safety Regulations, where health and safety is put at risk, even if such risks have not materialised into actual injuries. Accordingly, for those matters I will impose significant fines. Those fines are reduced to take into account that the breaches arose out of a common or associated set of circumstances that occurred on the one building site. They have also been reduced to take into account the defendant’s subjective circumstances, the comprehensive steps taken by the defendant since the inspection to prevent further breaches and the way the defendant assisted the investigation and entered pleas of guilty to the charges. For the other charges I will exercise my discretion and not record convictions.
Sentence
I make the following orders:
(a) In relation to charge CC18/40745, allowing worker to carry out high risk work while unlicensed, I record a conviction and impose a fine of $5,000 and allow 3 months to pay;
(b) In relation to charge CC18/40746, failing to comply with Australian Standard AS/NSW 3012:2010 (Electrical installations – Construction and demolition sites), I find the offence proved, do not record a conviction and dismiss the charge;
(c) In relation to charge CC18/40749, failing to install a sign with the principal contractor’s contact details, I find the offence proved, do not record a conviction and dismiss the charge;
(d) In relation to charge CC18/41080, failing to maintain a workplace so as to allow for entry, exit and movement about without risk to health and safety, I find the offence proved, do not record a conviction and dismiss the charge;
(e) In relation to charge CC18/41081, failing to put in place arrangements ensuring compliance with Division 3.2.10 (Falling objects), I record a conviction and impose a fine of $7,500 and allow three months to pay; and
(f) In relation to charge CC18/41082, failing to safely manage risk of falls, I record a conviction and impose a fine of $12,500 and allow three months to pay.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 20 November 2018 |
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