SafeWork NSW v The Austral Brick Co Pty Limited

The Austral Brick Co Pty Limited faced prosecution by SafeWork NSW following the death of a worker who fell through a brittle asbestos roof while working at height. The case was heard in the Local Court of New South Wales, where the court was required to determine whether the employer had breached its duty under the Work Health and Safety Act 2011 by failing to ensure the health and safety of its workers. The specific legal issues included whether the measures taken to mitigate the risk of death or serious injury were reasonably practicable, whether reliance on a specialist contractor was justified, and whether it was reasonably practicable to cease the work. The court also needed to assess the adequacy of the safety management system and the knowledge held by the defendant regarding the risks involved.

In addressing these issues, the court closely examined the evidence regarding the employer’s safety measures and their implementation. It considered whether the employer had taken all reasonably practicable steps to eliminate or mitigate the risks associated with working at height on a brittle asbestos roof. The court evaluated the reasonableness of the employer's reliance on a specialist contractor to undertake the repairs and the effectiveness of the safety measures in place, such as safety mesh and a catch platform. Additionally, the court scrutinised the job safety environmental analysis and the overall safety management system in place. The court found that while the employer had engaged a specialist contractor and implemented certain safety measures, these were not sufficient to meet the standard of reasonably practicable measures under the Act.

The court concluded that the prosecution had not proven beyond reasonable doubt that the employer failed to discharge its duty to ensure the health and safety of its workers. The judge noted that the case would not proceed to final orders until the prosecution had considered an application under section 5AE of the Criminal Appeal Act 1912. The matter was subsequently listed for further determination on 4 February 2019.