SafeWork NSW v Bhullar Steel Australia Pty Ltd

[2025] NSWDC 72

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Bhullar Steel Australia Pty Ltd [2025] NSWDC 72

Hearing dates:

24 February 2025

Date of orders:

20 March 2025

Decision date:

20 March 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Bhullar Steel Australia Pty Ltd is convicted.

2   I impose a fine of $270,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

WORK HEALTH AND SAFETY – worker not qualified to complete tasks

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

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

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Texts Cited:

SafeWork NSW Code of Practice “Managing the Risks of Plant in the Workplace”

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Bhullar Steel Australia Pty Ltd (Offender)

Representation:

Counsel:
A Mykkeltvedt (Prosecutor)
S McIntosh (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
HWL Ebsworth Lawyers (Offender)

File Number(s):

2023/244231

Publication restriction:

None

JUDGMENT

Introduction

1. Bhullar Steel Australia Pty Ltd (the offender) appears for sentence after pleading guilty to an offence pursuant to s 32 of the Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Narendra Lalam to a risk of death or serious injury.

2. The maximum penalty for the s 32 offence is a fine of 17,315 penalty units ($1,782,579).

Facts

Background

3. The offender was conducting the steel processing and fabrication business from its principal place of business at 5 Junction Street, Auburn in New South Wales (the site).

4. Michael Bhullar was a director and officer of the offender.

Relevant workers

5. At all material times, the offender engaged approximately 10 to 12 workers.

6. Narendra Lalam was a Machine Operator engaged as a contractor by the offender since February 2021. Mr Lalam’s role required him to operate the Computer Numerical Control Machine (CNC Machine) to cut pieces of steel plates into various sizes and shapes.

7. Pardeep Dogra was a Mechanical Engineer employed by the offender. Mr Dogra’s role involved looking after the machines at the site, including the gantry stacking machines, staple machines and other large machines, to ensure all the machines were working in good condition. There were approximately 50 machines at the site. He would sometimes operate these machines depending on the work required. His role also involved allocating tasks to approximately seven trade assistants at the site.

8. Ammar Mansuri was initially employed as a CNC Machine Operator on a contract since January 2021. From 1 March 2021, Mr Mansuri’s position was changed to Project Coordinator. His role required him to work in the office at the site and conduct programming for the CNC Machine. He also conducted quality assurance checks on the machine.

The Magnetic lifter

9. In 2016, the offender purchased two magnetic lifters at auction for purposes that included “lifting flat plate pieces”.

10. The magnetic lifter involved in the incident was a product for “lifting and handling steel plate, pipes, beams and cylindrical work pieces of ferromagnetic materials” as described by the manufacturer. The magnetic lift was 180mm high, 160mm wide and 310mm long. There was a loop “handle” at the top in the middle and a lever at one end. It had a rated lifting capacity of 1000kg.

11. The magnetic lifter was discoloured, its labelling was illegible and it showed signs of damage including a bent lever arm and a missing activation button.

Incident on 4 August 2021

12. On 4 August 2021, at approximately 5am, Mr Lalam commenced conducting his work at the site, cutting steel plates on the CNC Machine.

13. At approximately 10am, Mr Lalam was cutting a steel plate as instructed by Tae Shin.

14. After Mr Lalam had completed the cutting task, he used the gantry crane to lift the steel plate and placed it onto a trolley. He then moved the trolley to where Mr Shin was working.

15. After Mr Lalam provided the steel plate to Mr Shin. He left the magnetic lifter with Mr Shin so he could use it if needed.

16. At approximately 11:30am, Mr Lalam was walking back to the CNC Machine to continue his usual work when Seung Jip Yang known as “Jimmy”, a boilermaker, stopped him and asked him to bring the magnetic lifter over to him and help him with a task. Mr Yang was engaged as an independent contractor by the offender.

17. Mr Lalam brought the magnetic lifter to where Mr Yang was waiting and asked Mr Yang what he wanted help with. Mr Yang wanted to move a steel frame. He did not advise Mr Lalam where he exactly wanted to move the steel frame to.

18. The steel frame shape was an “F” shape with two cross members back to the middle. The “upright” section of the “F” was (L) 3500mm with the two perpendicular lengths to the upright being (L) 1680mm and the width was 200mm. The steel frame was constructed of welded steel beams. The steel frame weighed approximately 633kg.

19. Mr Yang instructed Mr Lalam to place the magnetic lifter on the top of the steel frame and to lock the lever.

20. No assessment was conducted to determine the suitability of the magnetic lifter to lift this type of steel frame.

21. Mr Lalam attached the magnetic lifter to the steel frame and attached the crane chains to the magnetic lifter.

22. Mr Lalam then began to lift the steel frame which was only slightly elevated off the ground. During this lift, Mr Lalam continued to observe the stability of the steel frame and crane.

23. Mr Lalam observed that one side of the steel frame was tacked/welded to the floor. He then returned the steel frame back to the ground. Mr Lalam advised Mr Yang that the steel frame could not be moved as one side of the steel frame was tacked/welded to the floor.

24. The workers placed a ladder against the steel frame to reach the magnetic lifter and unlocked its lever. They moved the magnetic lifter closer to the centre then locked the lever again. Mr Yang then stepped away and asked Mr Lalam to lift the steel frame again. Mr Lalam was standing directly in front of the steel frame facing it.

25. Mr Lalam proceeded to lift the steel frame. The magnetic lifter detached from the steel frame and fell forward onto Mr Lalam, pinning him to the ground.

Injuries

26. Mr Lalam suffered serious crush injuries to his chest, left pneumothorax, left pelvis, and left rib fractures as a result of the incident.

Systems of work before the incident

27. The offender’s system of work did not provide for the use of exclusion zones or similar steps to isolate workers from falling loads in the event of a failure of a magnetic lifting device.

28. There was no adequate system or guidance regarding the process of selecting appropriate lifting equipment.

29. On 6 November 2020, Sydney Lifting Equipment Pty Ltd (Sydney Lifting Equipment), had been engaged by the offender to conduct an inspection of lifting equipment at the site. That inspection did not include an inspection of the magnetic lifters.

30. There were no formal or documented supervision arrangements at the site.  A number of workers have identified Mr Dogra as their supervisor. However, Mr Dogra did not understand himself to be responsible for the supervision at the site.

31. Mr Bhullar regularly attended the workshop area at the site and provided instructions to workers.

32. The offender provided workers with personal protection equipment (PPE) which included safety boots, goggles, ear plugs and face masks.

Safe Work Method Statement

33. The offender had a Safe Work Method Statement (SWMS), which referred to death or serious injury due to loads slipping or falling and the use of unsafe equipment or inexperienced personnel. The identified control was provided as follows:

(a)    Use licensed crane driver and rigging/dogging persons; and

(b)    Ensure load is stable and secure on crane before the items are moved/lifted, in case load slips.

34. The SWMS did not refer to the task of lifting loads with the use of the magnetic lifting device. It did not provide guidance as to the conditions in which magnets might be used or how they were to be used.

35. The SWMS was reviewed by Mr Bhullar on 23 March 2018 and signed by a number of workers on 24 March 2018. Mr Lalam was not engaged by the offender at that time and had not signed the SWMS.

Induction and training

36. After commencing work with the offender in February 2021, Mr Lalam was given an on-site induction. That on-site induction took about 15 to 20 minutes. Mr Lalam signed an induction document titled “F-33 Employee Induction Sign-Off”. The induction record document did not provide instructions regarding cranes, dogging, and/or selection and use of lifting equipment.

37. Mr Lalam received two to three days of training with Mr Mansuri concerning the operation and maintenance of the CNC Machine.

38. Mr Lalam was not provided with instruction or training on how to select the appropriate lifting equipment.

39. Mr Lalam’s training in relation to the operation of the crane or the use of the magnetic attachments was inadequate. Mr Mansuri had no external qualifications or experience in operating cranes or lifting equipment.

40. In 2018, a qualified rigger provided training to workers in relation to the use of the crane. Mr Lalam was not engaged by the offender at that time and he did not receive that training.

41. Mr Lalam’s competence in relation to the operation of the crane and/or the use of the magnetic attachments was not assessed by the offender.

42. Prior to the incident, toolbox talks were conducted every two to three months. The toolbox talk conducted on 19 July 2021 covered the “correct use of lifting gear, including training concerning slings, chains and magnets”. Mr Lalam stated that he was not present at this toolbox talk, although he was noted on the record of it, as attending.

Legislation and guidance material available prior to and at the time of the incident

43. A range of guidance material was available to the offender and Mr Bhullar in relation to the control of risks arising from workers being crushed or pinned down by falling loads.

Work Health and Safety Regulation 2017 (the Regulation)

44. Clause 39 of the Regulation applies for the purposes of s 19 of the Act to the person conducting a business or undertaking (PCBU). The PCBU must ensure that information, training, and instruction provided to a worker is suitable and adequate having regard to:

a.    The nature of the work carried out by the worker, and

b.    The nature of the risks associated with the work at the time the information, training or instruction is provided, and

c.    The control measures implemented.

45. Clause 203 of the Regulation provides that a person with management or control of plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1 of the Regulation.

SafeWork NSW Code of Practice: Managing the Risks of Plant in the Workplace (August 2019)

46. The SafeWork NSW Code of Practice “Managing the Risks of Plant in the Workplace” (Risks of Plant COP) commenced in August 2019 and is an approved Code of Practice under s 274 of the Act. The Risks of Plant COP provides the following guidance:

A.    When plant is being used to lift or suspend persons or things, the person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that the plant used is specifically designed to lift or suspend the load.

B.    The person must ensure that the lifting and suspending is carried out:

• With lifting attachments that are suitable for the load being lifted or suspended, and

• Within the safe working limits of the plant.

C.    The person must ensure, so far as reasonably practicable, that:

• No loads are suspended or travel over a person unless the plant is specifically designed for that purpose.

• Loads are lifted or suspended in a way that ensures that the load remains under control during the activity, and

• No load is lifted simultaneously by more than one item of plant unless the method of lifting ensures that the load places on each item of plant does not exceed the capacity of the plant.

D.    A person with management or control of plant at a workplace must review safety information and inspect each item of plant in the workplace and observe how it is used. Factors to consider include the condition of the plant, for example its age, maintenance history and how frequently the plant is used.

E.    The person with management or control of plant at a workplace must ensure the maintenance, inspection and, if necessary, testing of plant is carried out by a competent person.

F.    Plant inspection should be conducted in accordance with a regular maintenance system to identify:

• Potential problems not anticipated during plant design or task analysis.

• Deficiencies in plant or the equipment associated with use of the plant, for example wear and tear, corrosion, and damaged plant parts.

• Adverse effects of changes in processes or materials associated with plant, and

• Inadequacies in control measures that have been previously implemented.

Australian Standard 2550.1-2011: Cranes, hoists and winches - Safe use - Part 1: General Requirements (2011)

47. The Australian Standard 2550.1-2011 commenced in 2011 and provides the following guidance:

A.    Where loads are suspended by non-positive lifting attachments (e.g. magnetic, vacuum or friction lifting attachments), personnel should be excluded from all areas that could be affected by a falling load.

B.    Where it is not possible to isolate personnel from the operation area of cranes fitted with non-positive lifting devices, operational procedures shall be developed to prohibit personnel working in the hazardous areas; that is the area where personnel may be injured as a result of failure of the lifting attachment.

C.    The non-positive lifting device shall be sized to provide an adequate design factor on its nominal rated capacity, considering the size, shape, and mass of the lifted load.

Actions taken following the incident

48. After the incident, the offender did the following:

1. developed and implemented an updated SWMS for the task of “overhead gantry”. The SWMS provides a number of potential risks and hazards that can be encountered at every step of the task. It also provides detail on available control measures to eliminate and minimize the identified risks, including crane operation when lifting heavy beams, plates, and steel sections. The offender trained 15 of its workers with the SWMS on 10 August 2021;

2. engaged Sydney Lifting Equipment to inspect and assess the lifting equipment’s condition and adequacy for use; and

3. conducted toolbox talks more frequently, up to two times a week.

Offender’s Case on Sentence

49. The offender read and relied upon the affidavit of Michael Bhullar affirmed on 21 February 2025. Mr Bhullar was present in Court but was not required for cross examination. The following is a summary of his evidence. I will try not to repeat matters set out in the Agreed Statement of Facts.

50. Mr Bhullar is the General Manager of the offender and the Bhullar Group. He has over 20 years of experience in the steel manufacturing and fabrication industry, in both operational and management responsibilities.

51. Mr Bhullar started the Bhullar Group business in August 2006 and has been the General Manager since 4 August 2021. He is responsible for the following:

1. managing and overseeing the offender’s operations including the day-to-day operations at the site;

2. engaging in recruiting and training of new employees;

3. engaging and managing consultants and stakeholders;

4. overseeing and leading the offender’s steel tenders; and

5. overseeing the offender’s financial management.

52. Mr Bhullar stated in his affidavit that safety and risk management systems are very important considerations for the offender and the Bhullar Group.

Remorse and contrition

53. Mr Bhullar stated in his affidavit that on behalf of the offender he is sorry for the incident and wishes to make it clear that the offender is deeply remorseful for the incident in which Mr Lalam was injured.

54. The offender accepts that it failed to ensure Mr Lalam’s safety and offered an unqualified apology for its breach of the Act and for exposing Mr Lalam to risks to his health and safety.

55. The offender also unreservedly acknowledged that the risk to which Mr Lalam was exposed would have been eliminated or minimised, if they had taken the steps set out in the Amended Summons prior to the incident.

56. The offender is committed to ensuring that no similar incidents occur in the future and accepts responsibility for its role in the incident.

57. Mr Bhullar stated that as the General Manager, he has treated, and will continue to treat the incident, the consequences of the incident, the prosecution and the offender’s breach of the Act as matters of utmost seriousness.

Background

58. The offender was incorporated on 9 March 2020. It is one of two primary associated entities, alongside Bhullar Engineering Pty Limited (Bhullar Engineering) of the Bhullar Group. The Bhullar Group is a family-owned group of companies that has been performing steel manufacturing work since August 2006.

59. The offender is a specialist steel processing and fabrication business, primarily responsible for fabricating sections of steel to be sold to other fabricators and for use on projects. It operates as a manufacturer and supplier of steel sections including plunge columns, welded beams, prefabricated steel and steel processing.

60. After being established in 2020, the offender engaged up to 25 workers to perform both manufacturing and technical steel fabrication work. By mid-2020 the Bhullar Group was significantly impacted by the COVID-19 pandemic and associated restrictions in the Cumberland Local Government Area. As a result, by 4 August 2021 the offender had downsized to around 10 workers. By this point, the Bhullar Group was predominantly operating out of the site.

61. At the time of swearing this affidavit, the offender engaged nine full-time employees, and one part-time employee. It engages contractors depending on business needs.

62. Since or around August 2024, the Bhullar Group has been in the process of relocating to Narrandera in regional New South Wales. The relocation process has stalled work, and the offender has only recently recommenced manufacturing after the relocation.

The site

63. The workplace located at the site, functions as a workshop for steel fabrication, manufacturing and engineering. Bay 2 of the workshop was primarily a fabrication location, housing the CNC Profile Machine and a general fabrication area. The incident took place at Bay 2.

64. In May 2024, the lease of the site expired. Since then, the offender ceased its operations out of the site. The offender continues to be in the process of constructing facilities in Narrandera to continue its operations. At present, the offender is not conducting any steel fabrication, manufacturing or engineering work.

65. The magnetic lifter involved in the incident is no longer in use by the offender. It will not be used when operations commence at the Narrandera workshop.

Safety systems prior to the incident

66. Prior to the incident, the offender deposed that it implemented several systems to ensure safety at the workplace. As a hands-on Managing Director, Mr Bhullar was personally involved in conducting toolbox talks and verifying competency when training employees.

67. A number of the key safety systems in place prior to the incident are set out below.

Safe Work Method Statement

68. The offender developed and implemented SWMS relevant to its operations, including in relation to specific high-risk tasks. Mr Sly provided input in the development of the SMWS. This involved consultation with workers in developing the SWMS.

69. On 23 March 2018, a SWMS titled “Sale Work Method Statement-Part I-Gantry Crane Operation” was issued. It identified control measures related to each activity such as working at heights.

70. On 23 March 2018, another SWMS titled “Safe Work Method Statement-Part 1-Storage” was issued. It identified control measures for the storage of I-Beams and other steel sections at the site.

Inspections

71. Prior to the incident, the offender engaged independent third-party specialists to conduct inspections, testing and tagging of plant, including cranes which were operated on a frequent basis to ensure that machinery was operating to the required standard and was without fault.

72. Sydney Lifting Equipment was engaged by the offender to conduct comprehensive inspections on lifting equipment at the site which included a check on chain slings, horizontal plate clamps, vertical plate clamps, universal plate clamps, and plate clamp turnings. In 2021, there was some difficulty in organising inspections to occur due to the impact of COVlD-19.

73. The offender also engaged companies including Ace Materials Handling and Eilbeck to conduct routine inspections on cranes to ensure they were compliant with the requisite operating standards.

Capable workers

74. The offender employed capable and specialist workers with appropriate training and practical experience. Specifically, the offender employed Pradeep Dogra in 2019 as a Mechanical Engineer Technician.

75. From early 2020, after the COVlD-19 pandemic had commenced, Mr Dogra assisted Mr Bhullar in conducting regular toolbox talks at the site.

76. Under Mr Bhullar’s direction, the offender was careful in engaging subcontractors to undertake specialist work, such as steel installation. In selecting subcontractors for the offender, Mr Bhullar stated that he personally considered project references for the business, and that they engaged workers with current trade qualifications appropriate for the job.

77. Workers engaged to perform at the site were also tested and trained by Mr Bhullar before being engaged to work for the offender. Mr Bhullar stated that he would test their competency by giving them instruction such as providing technical drawings and then assess their competency in comprehending and executing work following the specifications contained within those technical drawings.

78. The offender’s system is that managers and workers are required to stop work if they see anything that they deem a risk or unsafe at the site or at an external site.

Safety guidance notes

79. The offender deposed that it was committed to ensuring that the site and its workers were well-equipped with operational and safety guidance notes regarding the equipment at the site. The offender had developed an induction manual and a verification of competency (VOC) process.

80. The induction manual was an electronic document, also available in hard copy, that contained information regarding the offender’s organisational structure, quality management, safety guidance notes and the following information:

1. Introduction & Purpose;

2. Management Statement;

3. Organisational Chart;

4. Administration;

5. Overview of a Quality Organisation;

6. Workplace Health & Safety;

7. Business Management System;

8. Quality Assurance;

9. Safe Work Procedures;

10. Safety Data Sheets;

11. Statutory Subcontractor Documents;

12. RPL Fabrication Certificate; and

13. Workshop Signs & Messages.

81. Bhullar Engineering, under Mr Bhullar’s direction, developed a number of internal policies and procedures regarding health and safety, including its induction manual. The relevant components of the induction manual are extracted below:

1. HSEQ Management Policy;

2. HSE Consultation and Communication Procedure;

3. Quality Management Manual;

4. HSE - lncident and Injury Management Procedure;

5. F.53 Issuing PPE & Equipment;

6. HSE - Risk Management Procedure;

7. Risk calculation matrix;

8. Overhead crane operator’s pre-start safety inspection checklist;

9. Selection and use of lifting gear;

10. Safe Use of Permanent & Electromagnets;

11. Beaver Magnet Lifter Equipment Operation instruction;

12. Demag Standard Cranes Manual; and

13. Work instructions for Overhead Crane.

82. These policies and procedures were applied to the workers of the offender.

83. In 2020, the VOC documentation was specifically prepared in conjunction with specialist third party consultants, Innovative Welding and Quality Management Services Pty Ltd (Innovative Welding) and Obsequentia Pty Ltd (Obsequentia), to ensure compliance with industry standards.

Induction and training

84. All workers engaged to perform work at the site were required to attend a site induction. Mr Bhullar stated that he personally conducted site inductions as well as Mr Dogra. These were ordinarily conducted at the site. The workers were provided with access to company policies and procedures and then were taken on a site walk and workshop induction. The site walk was the most important aspect of the induction because workers were shown evacuation processes, emergency exits and the location of machinery and equipment.

85. During the induction, Mr Bhullar stated that he would provide a comprehensive induction manual to workers so that they were able to review the materials at any stage and ask any questions or express concerns. Workers were given the option to either sit down and review the induction manual at the site or take copies home, review and then sign off. The time taken by workers to review and sign off varied from one day to multiple days.

86. Mr Bhullar stated that the offender and he were committed to developing a positive culture that prioritised safety. Mr Bullar deposed that he believes he fostered a culture where workers were free to report safety concerns. Approximately once per fortnight he would conduct site walks and actively check in with workers to see if they had any safety and operational concerns.

87. The induction process included VOC training which was conducted with all workers at the commencement of their engagement with the offender. Mr Bhullar stated that he personally conducted the VOC training for all workers. He was involved in the process of creating the VOC documents with specialist third party consultants, Innovative Welding and Obsequentia.

88. The VOC involves a comprehensive set of safety guidance notes and documents which included, but not limited to, the following:

1. guide for the Beaver Permanent Magnet Lifter;

2. work instructions for CNC Profile Machine;

3. general guide for cranes;

4. type of sling assemblies;

5. safe use of sling chain;

6. safe use of chain sling-hook, choke hitch and three types of slings; and

7. use of magnetic on plates.

89. Mr Bhullar deposed that he took steps to verify all workers had completed the VOC training and did so by ensuring that workers signed a declaration to the effect that they understood all documents and did not have queries or questions about the VOC.

90. Mr Bhullar further stated that he also ensured that the printed copies of the VOC were available at the site, in a metal box clearly labelled as manuals.

Toolbox talks

91. Prior to the incident, the offender conducted toolbox talks at the site with all onsite workers. The talks were conducted at least once a week in the morning and were primarily conducted by Mr Dogra.

92. During these weekly toolbox talks safety issues were discussed, including identifying health and safety hazards, providing information to personnel at the site about controls and discussing the introduction or alteration of procedures for monitoring safety hazards. Also, the correct use of lifting gear, crane operation (material handling) and PPE were discussed amongst other topics with the workers.

93. Mr Bhullar stated that he often attended these toolbox talks and at times conducted the talks himself so that he was constantly updated as to what was occurring at the site.

Pre-start text messages

94. Mr Bhullar stated that he used to send text messages to workers each day prior to the commencement of work, usually around 7am, with the tasks that were to be performed that day.

95. In these text messages, he deposed that he would identify the risks associated with the tasks and measures that are to be taken by workers to mitigate any of the identified risks.

Safety spending prior to the incident

96. Mr Bhullar stated that he estimates, prior to the incident between 1 January 2020 to 31 July 2021, the offender spent approximately $195,954 on safety during this period, including:

1. equipment maintenance and improvements in the amount of approximately $106,248;

2. staff training expenses in the amount of $12,956;

3. PPE in the amount of $10,040;

4. repairs and maintenance in the amount of $3,483;

5. workshop repairs and maintenance in the amount of $26,531; and

6. compliance expenses in the amount of $36,697.

Safety systems following the incident

97. Following the incident, Mr Bhullar stated that he implemented a number of measures to further improve the safety systems within the offender’s workplace, to attempt to close any other gaps in the system and to further enhance the offender’s commitment to safety. Bhullar Engineering also adopted these improvements.

Safe Work Method Statement per SafeWork notices

98. On 5 August 2021, the offender was issued with SafeWork improvement notices:

1. Improvement Notice numbered 7-402537 stated that the offender needed to develop, implement and maintain a safe work procedure for the task of lifting a metal fabricated frame utilising a “lever activated magnetic” attached to a “gantry crane” and this must be in consultation with workers by way of a SWMS. In response, the offender implemented a revised SWMS which provides details on available control measures to eliminate risks associated with crane operation, particularly in relation to lifting heavy beams, plates and steel sections. The SWMS was communicated to and signed off by all workers;

2. Improvement Notice numbered 7-402614 required that a dogman/rigger conduct annual inspections of all lifting equipment used by the offender. In response, Mr Bhullar ensured that a third party, Sydney Lifting Equipment, completed an inspection of all lifting equipment at the site on 12 August 2021;

3. Improvement notice numbered 7-402925 required the offender to provide information, training and instruction to workers in relation to the safe use and application of the “magnetic hook” attached to the “gantry crane” when lifting steel frames. In response, the offender internally developed a Safe Use of Permanent and Electromagnets training manual.

Inspections of lifting equipment

99. Following the incident, the offender has engaged third-party companies, All Safe Group, Eilbeck Cranes, RKA Industrial Solutions and ICrane, to regularly inspect lifting equipment and cranes used at the site:

1. on 16 December 2021, Mr Cranes conducted a service and inspection of cranes and crane equipment at the site;

2. on 21 March 2023, All Safe Group conducted an inspection on the single girder crane and double girder cranes at the site;

3. on 13 September 2023, RKA Industrial Solutions conducted an inspection of the overhead crane at the workshop; and

4. on 31 May 2024, ICrane carried out crane tests and repairs at the site.

Certifications

100. To ensure that the Bhullar Group’s system of quality management and WHS were compliant with the international organisation for standardisation (ISO), the Bhullar Group through its entity, Bhullar Engineering, obtained the following certifications:

1. On 22 January 2022, Bhullar Engineering was assessed and issued with a compliance certificate by Obsequentia in respect of its compliance with ISO 9001:2015;

2. On 1 December 2022, Bhullar Engineering was assessed and issued a certificate by BSCIC Certifications Private Limited (BSCIC) about its WHS management system which was compliant with ISO 45001:2018;

3. Also on 1 December 2022, Bhullar Engineering was assessed and issued with a certificate by BSCIC about its quality management system which was in compliance with ISO 9001:2015.

Workers with high-risk work license

101. The offender engaged Zane Anthony Litchfield, who holds a High-Risk Work License in Boom Type Elevating Work Platform, Dogging, Intermediate Rigging, Basic Rigging and Slewing Mobile Crane (up to 60 Tonnes). He is the dedicated resource undertaking and being responsible for high-risk works.

102. The offender has also funded its worker, Dean Allen Bruce to attend a C6 Slewing Mobile Crane Course TULICOO23. Mr Bruce has obtained full certification to operate mobile cranes and has primary responsibility of this at the offender.

Induction and assessment

103. In approximately June 2024 the offender commenced the creation of an electronic induction system whereby all manuals were available to workers through an electronic system called Happy HR, a cloud-based platform.

104. Through Happy HR, the offender is able to send notifications and updates directly to employees to inform them if there are any changes to the policies which require their review and attention.

105. Since around July 2024 the offender has implemented the use of Happy HR.

106. Mr Bhullar stated that the offender has redrafted and reissued job descriptions to workers, to ensure they were clear about their role and responsibilities, specifically the tasks they were required to perform and those they were not to perform.

107. Mr Bhullar also stated that the offender and he developed a skill matrix to assess workers’ competencies. Workers were classified as “Competent”,
     “Skilled”, “Semi-Skilled” or “Un-Skilled”.

Toolbox talks

108. The offender increased the frequency of toolbox talks at the site after the incident, until it ceased operation at the site in May 2024. Mr Bhullar conducted most of the toolbox talks.

109. Toolbox talks were conducted every Friday morning, and all on-site workers were required to attend. A key focus was to remind workers of their responsibilities and reinforce the importance of compliance with the SWMS.

Pre-start meetings

110. Following the incident, Mr Bhullar commenced running a pre-start meeting every day, prior to the start of the work, by him or by a supervisor at his direction. The offender and Mr Bhullar developed a pre-start meeting template.

111. The pre-start meetings were conducted at around 7am and all on-site workers attended. Health and safety accountabilities and responsibilities of each worker were identified and discussed. Mr Bhullar stated that he provided specific guidance as to how to manage risks with a particular focus on high-risk activities.

Safety spending following the incident

112. Following the incident, the offender assigned financial resources to ensure, maintain or approve safety including the following:

1. equipment maintenance and improvements in the amount of approximately $55,334;

2. lifting gear related expenses in the amount of $31,314;

3. repairs and maintenance in the amount of $3,827;

4. staff training expenses in the amount of $3,557; and

5. compliance expenses in the amount of $52,422.

Cooperation with SafeWork

113. On 5 August 2021, the offender cooperated with SafeWork’s investigation, assisting SafeWork Inspector Trevor Buckett and Assistant State Inspector John Whatman during their inspection at the site. This also included the provision of the lever activated 1 Tonne magnetic hook involved in the incident to SafeWork. Mr Bhullar was the direct point of contact for SafeWork.

Support for Mr Lalam

114. Mr Bhullar deposed that he personally ensured that support was provided to Mr Lalam including reaching out directly to him and his immediate family members to conduct a welfare check.

115. During these check-ins, Mr Bhullar stated that he personally advised Mr Lalam that the offender was willing to assist him and that there would always be a role available for him if he wishes to return to work. Mr Bhullar was informed by Mr Lalam’s brother-in-law that Mr Lalam had secured alternative employment and would not return to the offender.

116. Following the incident, Mr Bhullar stated that he arranged in-person counselling session for all workers conducted by Acacia Connection Pty Ltd.

117. Mr Bhullar stated that his priority after the incident was to ensure the wellbeing of the workers and contractors who were impacted by the incident.

Community involvement

118. The Bhullar Group runs traineeship programs providing education and training pathways covering trade and non-trade occupations. This is provided through the group entity Bhullar Educational Services Pvt Ltd 1/A Skills Tech International (Bhullar Educational Services), where Mr Bhullar is the Chief Executive Officer.

119. Since 2012, Mr Bhullar has worked closely with Hunter TAFE to support international students in their vocational study of Automotive - Light Vehicle and Engineering - Metal Fabrication. As part of this program, Bhullar Educational Services also provides support for international students to obtain visas enabling them to undergo on-the-job training as Occupational Trainees in Australia.

Prior convictions   

120. The offender and the Bhullar Group entities have not previously been charged or convicted under the Act. The offender has been operating since 2020 and the Bhullar Group has been in operation continuously since 2006.

121. Prior to the incident, no notifiable incidents had ever occurred at the worksites. The offender had not been alleged to have contravened the Act or any safety legislation and had not had any improvement notices issued. Similarly, the offender’s directors had themselves never been officers of an entity involved in a notifiable incident or any alleged contravention of the Act.

122. The offender’s current related entitles have had no notifiable incidents, improvement notices, allegations of breach of any safety legislation or successful prosecutions against them.

123. Bhullar Steel Distribution Ply Ltd, a previous corporate entity within the Bhullar Group, was once issued with an improvement notice by SafeWork in 2018 regarding a creation of a Safe Work Method Statement for the storage of beams. This notice was complied with by Bhullar Steel Distribution in a timely manner.

Consideration

124. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

Objective seriousness

125. The s 32 offence involves some objective gravity. The offender was responsible for the system of work and supplied the necessary equipment. The risk of workers being crushed or pinned down by falling loads, such as magnetic lifters, while they were in operation at the workplace, was obvious and known to the offender. The need for appropriate system, training, supervision and equipment inspection was also known, but poorly addressed. There was guidance material available to the offender at the time of the incident suggesting the use of adequate equipment, inspection/testing, exclusion zones and more. By its plea of guilty the offender admitted that it should have had adequate systems in place, trained the workers accordingly, ensured they were competent to operate the equipment used at the site, provided adequate supervision and inspected the equipment properly. The likelihood of the risk coming home if appropriate control measures were not taken was moderate. The control measures that should have been implemented were simple, inexpensive and well known to the offender. The pleaded risk included a risk of death. The injuries sustained by Mr Lalam were serious and are an aggravating feature of the offence.

125. I have taken into account the maximum penalty for the offence.

Deterrence

127. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

128. There is some need for specific deterrence. In this case, the offender still operates a business that potentially exposes workers to risks as a result of its operation. Conversely, the offender has taken comprehensive and timely steps to improve its processes and safety system as a result of the incident.

Aggravating factors

129. The injury harm and loss caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The injuries sustained by Mr Lalam are sufficient to establish this aggravating factor.

Mitigating factors

130. The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been operating its business since August 2006.

131. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken steps to respond to the incident and has demonstrated that it has good prospects of rehabilitation.

132. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Bhullar, on behalf of the offender, has expressed remorse for the injury sustained by Mr Lalam and accepted responsibility for its failure to comply with its duty under the Act. I accept this to be a genuine expression of contrition. The plea of guilty also indicates remorse.

133. The offender is a good corporate citizen. The offender has provided educational programs and opportunities for trainees in metal fabrication especially international students.

134. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

135. The offender co-operated with the investigation conducted by SafeWork NSW: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to pay a fine

136. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

137. The offender did not contend that it had a reduced capacity to pay a fine.

Penalty

138. Bhullar Steel Australia Pty Ltd is convicted.

139. The appropriate fine is one of $360,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

140. I impose a fine of $270,000.

141. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

142. I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 20 March 2025