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The 2nd Largest WHS Fine in NSW - Why

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What do you have to do, or not do, to be fined $425,000? This is the 2nd  

largest WHS fine in NSW history. You may not be surprised to know that the offending company is now going out of business.


This article examines the court judgement to find the facts the Judge relied on in making his decision. Regardless of the industry you are in, there are lessons here that can be of use to all PCBUs, Officers and others who don't want this to happen to them.


The court case - April 2016

A bricklayer was killed when he fell 5 metres through a penetration on the second floor of a building on a retail site in Hurstville. SafeWork NSW prosecuted the company who was the principal contractor of the multi-story building site. It was fined $425,000.


SafeWork NSW also prosecuted the sole director of the company who was also the Site Manager of the construction site. He was fined $85,000 for breaching his duty of due diligence as an Officer of the company (section 27(1) of the WHS Act).


The facts the Judge relied on to make his decision

The text shown in quote marks are the actual words of the Judge


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The Site Manager had "actual knowledge from his prior interactions with WorkCover about the danger presented by unguarded penetrations and the steps that should be taken to eliminate or minimise the risk of falling through an unguarded penetration"

"The risk presented by an unprotected penetration was obvious." The Site Manager "took some inadequate steps to have the penetration sealed" and "knew that the penetration was not adequately secured."

"On any given day 15 to 20 people may be working at the site, and at least 4 other people were working on the slab on the date of the incident. At least 4 workers were exposed to the risk … for approximately one week."

The company "did not inform workers at the premises of the existence of penetrations on the second floor and a number of workers were unaware of the penetrations prior to the incident."

The company "failed to develop a written SWMS to identify the risk and implement control measures …. "a written SWMS was required by clause 299 of the Work Health and Safety Regulations 2011. The system adopted by the offenders was ad hoc, unplanned and wholly inadequate."

“At the time of the incident” the National and WorkCover Codes of Practice on preventing falls “provided that holes in floors should be made safe immediately after they are formed and should be guarded with material strong enough to prevent objects or persons falling through.”

“The company had a Site Safety Management Plan and OHSE Management Plan in place prior to the incident, however these plans did not address the risk of a person falling through an unsecured penetration. There were no other procedures or systems in place to address this risk. There were no procedures in place to record planned or actual control measures for penetrations at the premises.”

SWMSs submitted by other contractors to the company "did not address the risks associated with working near penetrations, or checking that penetrations were securely covered." And the company "did not have a system in place for reviewing SWMS and risk assessments submitted to it" by other contractors "prior to working near penetrations."

"The conduct of the offenders fell well short of that expected from responsible persons involved in high risk construction activity."

Neither the company or its Officer "had accepted responsibility for the failings that had led to the bricklayer's death".



Further reading

You can read the full judgement including the factors and principles that the Judge considered in arriving at the amount of fine to impose at:

SafeWork (NSW) v Romanous Contractors; SafeWork (NSW) v John Allen Romanous [2016] NSWDC 48