Michael Foster v Better Building Holdings Ltd
[2022] ACTIC 2
•9 June 2022
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Michael Foster v Better Building Holdings Ltd |
Citation: | [2022] ACTIC 2 |
Hearing Date(s): | 8 June 2022 |
DecisionDate: | 9 June 2022 |
Before: | Chief Industrial Magistrate Walker |
Decision: | See [44] – [45] |
Catchwords: | INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – Other States and Territories - Sentence – General Deterrence - Failing to comply with a health and safety duty – Exposure to risk of death or serious injury or illness – whether negative publicity amounts to extra-curial punishment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) Work, Health and Safety Act 2011 (ACT) (‘WHS Act’) |
Cases Cited: | Bartlett v Corporate Ventures (ACT Industrial Court, Chief Magistrate Walker, 3 June 2015) Cummins v Multiplex [2021] ACTIC 1 SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 338 Unity Pty Ltd v SafeWork New South Wales [2018] NSWCCA 266 |
Parties: | Michael Foster (Informant) Better Building Holdings Ltd (Defendant) |
Representation: | Solicitors Sofia Janackovic (Prosecution) Timothy Sharman (Defendant) |
File Number(s): | CC 40087 of 2022 |
CHIEF INDUSTRIAL MAGISTRATE WALKER:
The offender, Better Building Holdings Proprietary Limited, pleaded guilty on 28 February 2022 to one count of failing to comply with a health and safety duty, pursuant to section 32 of the Work, Health and Safety Act 2011 (ACT) (‘WHS Act’). This is a category two offence.
The maximum penalty for this offence for a body corporate is a fine of up to $1,500,000.
The offender is a person conducting business or undertaking (PCBU) as defined in the WHS Act, that business being residential construction. Mr Ivan Juric, construction manager, is also the sole director.
The PCBU, relevantly, had a duty to workers to take measures, so far as reasonably practicable, to eliminate or minimise the risk of falls from heights.
This offence occurred at Block 1, Section 49, Temple Terrace, Denman Prospect during the construction of a three-storey residential dwelling, consisting of ground, first and, second floors. The offender was the principal contractor.
Magi Constructions Proprietary Limited (‘Magi’) was retained to provide carpentry services on a subcontractor basis to the offender. Mr Thomas Magi was the sole director of Magi. Mr Daniel Rayment was retained by Magi as an apprentice carpenter.
From November 2019, Mr Benjamin Perrett, an employee of the offender, worked as site supervisor.
On 29 January 2020, apparently unbeknownst to the offender, Mr Magi and Mr Rayment commenced laying Hebel floor pavers across the floor frame, consisting of steel beams with unprotected gaps between. This work was conducted on the second level of the building. The pavers weighed 55 kg each. Whilst there was timber guard railing at some points on the building, what was there did not meet minimum industry standards. Significant portions of the building edges were not protected by guard rails or other physical barriers. On the second level, where Mr Magi and Mr Rayment were working, there was no edge protection at all. They were exposed to the risk of falls from two to over six metres. They laid a path of pavers to facilitate moving across the beams.
On 4 February 2020, Mr Magi resumed the task, again with Mr Rayment assisting. About 7 am that morning, Mr Perrett attended the site. He told Mr Magi to put up mobile scaffolding as fall protection. Mr Magi did not; he and Mr Rayment continued working as before.
At about 9:30 am, Mr Kich, a leading hand for the offender, told Mr Magi to be careful and put up a handrail. Apparently, timber was available for this purpose. Mr Magi did not.
Soon after, as Mr Magi and Mr Rayment were carrying one of the Hebel floor panels around the edge of the temporary walkway, Mr Magi fell over the unprotected edge of the building.
He fell 6.42 metres, hit a temporary brace and then landed on the concrete floor. He died as a result of the fall.
A mobile scaffold was available onsite, but it was not suitable to assist with laying pavers on the second floor of the building: it was too low and not able to be manoeuvred to support the work at various locations. Other scaffolding at that height would have required a licensed scaffolder to construct it. Whilst a guard rail could have been inserted, that in itself would have been high risk construction work requiring a risk assessment and the development of a Safe Work Method Statements or ‘SWMS’. Whilst apparently the offender, as principal contractor, through its agents, the site supervisor and leading hand, gave “direction” to the workers to “put up scaffolding” or “put up a handrail”, the facility to do so safely was not immediately available. The directions were not complied with, and that non-compliance was not addressed. This situation was the end result of a litany of egregious breaches of duty.
The offender had a policy headed “General Work Health and Safety Management System” signed by Mr Juric dated 11 February 2015. It contained a number of broad undertakings, such as to manage risks associated with falls and ensuring that a WHS management plan (including SWMS) would be prepared for any construction over $250,000. The offender’s duties were broadly outlined in its policy, including prohibiting any construction work from commencing until a risk assessment was undertaken and a written SWMS prepared, that any work would be carried out in accordance with that SWMS, and that the offender would stop any work not carried out in accordance with an applicable SWMS.
Site files for this particular construction included a WHS Management Plan which required contractors to undertake an initial risk assessment prior to commencement of any work on the site, to communicate risks to their workers through a toolbox talk, and to submit written records of these assessments and actions to the offender which would then implement safety measures.
There was a particular requirement for SWMS in relation to working from heights, and the offender was to ensure that SWMS were prepared, and that work was carried out in accordance with it.
The site files also included a template Site-Specific Risk Assessment requiring employees to have read applicable SWMS, ensure that fall zones were protected, inspected and safe – and to stop work from commencing unless hazards had been eliminated or controlled.
The offender failed to comply with its own policy to have and enforce falls protection, including by the use of SWMS on projects valued over $250,000.
There had been no written risk assessment of the work being performed, although the offender submitted that there had been discussions between it and the workers at the start of the project. There is no written record of that discussion, and no details of its contents were provided. There were no SWMS in place applicable to the work site. Indeed, the offender had no SWMS in existence, apart from a blank proforma.
There was no site induction procedure, no “toolbox talks”, no review of policies or protections by employees on site, no stop work to ensure even the most rudimentary of safety measures.
The offender had engaged a consultant to assist with the development of safety policies, along with other business requirements such as workers compensation. This process, according to the evidence of Isabella Juric, the Director’s wife and business partner, began late 2018, 23 years after the business began operating in its current form.
Beyond retention of an advisor, there is no evidence before the court of actual attention to safety procedures prior to this incident. The state of the offender’s WHS program at the date of the incident suggests that there had in fact been no developments since the rudimentary policy adopted in 2015. And that policy was simply ignored on this site.
In considering the level of criminal culpability of the offender, I am assisted by the succinct observations of Strathdee DCJ in SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 338 wherein, following a review of the authorities, Her Honour helpfully summarised a number of relevant considerations which include:
(a)the gravity of the breach;
(b)the potential consequences of the breach;
(c)the actual consequences of the breach, insofar as they assist in a determination of the level of risk and its foreseeability;
(d)whether the risk was known or ought reasonably to have been known to the offender;
(e)whether the risk was obvious;
(f)the availability of steps to eliminate or minimise the risk; and
(g)the vulnerability of anyone exposed to the risk.
It is surprising that a well-regarded, experienced building company, however small, managed to operate for 23 years with no proper safety procedures in place, no implementation of the limited procedures it had formally adopted, and no enforcement of even the most basic protection against such an obvious risk.
I have commented in the past (see Cummins v Multiplex [2021] ACTIC 1; Bartlett v Corporate Ventures (ACT Industrial Court, Chief Magistrate Walker, 3 June 2015) about the significance of non-compliance with safety systems; that written systems alone are insufficient to address identifiable workplace risks. However, the absence of written processes is highly significant is assessing the objective seriousness of a breach of duty. This is not a case of a single failure or non-compliance in the context of an established safety management system. This case reflects a culpable inadvertence to risk in the workplace.
The likelihood of a person falling from an unprotected open floor of a building under construction whilst carrying a 55 kilogram paver with another person across an incomplete floor is entirely obvious. The risk of death or serious injury as a result of such a fall from height, particularly over 6 metres, is entirely obvious.
The fact that the risk eventuated, and a man died is entirely unsurprising.
Ms Juric reports that the offender has now invested hundreds of hours in reviewing and updating WHS procedures, including written policies, the requirement for written records of adherence to those policies, and a practice of engaging a scaffolding company to erect falls protections on construction sites. These measures were readily available before the incident. They are reasonably practicable, one might say basic, to construction work. Had they been adopted and enforced, the obvious risk inherent to this work performed on the offender’s site on 4 February 2020 likely would not have eventuated.
Mr Magi’s conduct was raised by the offender. The offender bears a non-delegable duty. This may be contiguous with another person’s duty. Another duty holder’s failure to comply with their duty does not mitigate the offender’s criminal culpability except insofar as it may be relevant as to the nature and circumstances of the offending. For example, where reliance was reasonably placed upon a specialist subcontractor to address issues solely within its area of expertise.
In this case Mr Magi bore duties which overlapped with those of the offender. His own failure to act protectively no doubt contributed to his death. However, these are not matters of civil liability in which contribution is determined. Shared culpability does not result in some form of apportionment. It is relevant only in considering the actual culpability of the offender on the facts of the particular case.
There was a long-standing relationship between the offender and Mr Magi, and no doubt mutual respect between the director of the offender, Mr Juric, and Mr Magi. There may have been some reluctance to direct Mr Magi’s way of work. This does not alter the obligation of the offender to comply with its duty to provide a safe workplace for all workers in workplaces under its control, even for those heedless to their own safety. This case is not one in which Mr Magi was performing work outside the offender’s capacity to understand or control. The offender’s culpability is not reduced by its reliance of Mr Magi’s expertise.
It goes without saying in light of the above comments, that I conclude that the breach of duty before me is a very serious one.
The offender is a small family business. It boasts a very high level of local support from clients, contractors and industry organisations, as evidenced by the numerous letters of support before the court. The workmanship and service provided by the offender is apparently exceptional.
I have no doubt that the offender’s employees and Director, as well as many others who knew Mr Magi, have been significantly impacted by his death.
Remorse is often reflected in matters of this type in two ways. The first is acceptance of responsibility for the breach. An early plea of guilty, in this case on the first mention of the matter, is often indicative of both acceptance of responsibility and remorse for its consequences. I accept that is so in this case and that the early plea is consistent with expressions of remorse and sadness over Mr Magi’s death. It was submitted, and I accept, that a discount of 25% on penalty is appropriate.
Secondly, remorse may be demonstrated. In this case there is no evidence of any positive action to redress the impact of the offending. Offenders may express their remorse by either financial support or social contribution to the victims of that offending or to the industry impacted by their offending. The lack of positive action does not aggravate the offending but does reflect a missed opportunity for mitigation.
The offender submitted that as a result of the adverse publicity generated by this prosecution, it has suffered, and will suffer, extra-curial punishment. I reject that submission. Unwelcome publicity is both a usual and an expected consequence of criminal offending and is a factor in effecting general deterrence. So much is a matter of common sense. The WHS Act goes further, authorising the court, on its own initiative or on application by the prosecutor, to make an adverse publicity order requiring the offender, amongst other things, to publicise the offence, its consequences, the penalty imposed, and any other related matter as specified by the court. This provision is not in force as an additional penalty but to enhance what is frequently the primary purpose of sentencing for breach of duties under the WHS Act, that is general deterrence.
Such an order is enforceable by the regulator. The question of publicity having been addressed in this way by the legislation renders it clear, if there were any doubt, that publicity per se does not amount to extra-curial punishment warranting any mitigation of sentence.
The offender notes its prior good industrial record. There is no evidence before the court of breaches of duty resulting in either the regulator serving prohibition notices or prosecution. The court takes this into account pursuant to section 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT). Whilst the lack of criminal antecedents in some contexts allows for significant lenience in sentencing, in the work health and safety arena, particularly where the objective seriousness of the offending is significant, the primacy of general deterrence in sentencing will often weigh against a more lenient approach despite the lack of criminal antecedents.
The court is required to consider the loss suffered as a result of the breach, and the impact on victim’s family (section 33(1)(e) and (f) of the Crimes (Sentencing) Act 2005 (ACT)). Mr Magi’s widow made her victim impact statement in court. It is now commonly noted that any penalty the Court imposes will never adequately reflect the loss experienced by family members of a person who did not make it home safely. Actual harm which eventuates from a risk is a factor in sentencing though; the loss of a husband, a father, resounds in the penalty to be imposed.
The question of an offender’s capacity to pay a fine is a relevant consideration in setting the level of financial penalty. However, it too is to be considered having regard to the need to achieve general deterrence.
Where the offender continues to operate in the same industrial environment, particularly where that is a high-risk environment, the need to effect specific deterrence is also a relevant consideration, even for a first-time offender. As was noted in Unity Pty Ltd and SafeWork New South Wales [2018] NSWCCA 266 at [79], “questions of specific deterrence should take into account the size and scope of the operations of the offender: a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation”.
This offender is effectively a family business but a profitable one with the clear capacity to pay a significant fine. Its apparent reputation as an industry leader makes it a highly appropriate vehicle for general deterrence.
I record a conviction.
The offender is fined $450,000.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Magistrate Walker. Associate: A Jones Date: 24 June 2022 |
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