Citation: Workcover v Robertsons Painting and Decorating P/L [2014] NSWDC 230
Court: District Court of New South Wales
Date: 10 June 2014
Judge: Judge MJ Finnane QC
Background
The defendant was a painting and decorating company with approximately 25 employees and 20 contractor painters. The company had a long history of safe operations, no prior convictions, and had won industry awards for its conduct. On 24 January 2011, it was engaged in painting work on a building and directed two employees to use an elevated work platform rising above 11 metres.
Neither employee held a certificate of competency to operate the platform, as required by law. Neither was provided with a safety harness or hard hat. The platform's operating instructions clearly stated that it should not be used on slopes exceeding 5%, and that an alarm would sound if this threshold was exceeded. The workers were not informed of this requirement. The alarm sounded repeatedly while the workers were elevated, but they did not respond, apparently because they did not understand its significance.
The platform collapsed. One employee, Mr Osman, was thrown from the platform cab and killed. A second employee, Mr Kostanyuk, was on the platform at various times and was fortunate to escape uninjured. An electrician, Mr Baker, was working on the ground in nearby premises and narrowly avoided being struck by the falling equipment. The company faced two charges: failing to ensure the health, safety and welfare of its employees under s 8(1) of the Occupational Health and Safety Act 2000, and failing to ensure that a non-employee was not exposed to safety risks arising from the company's undertaking under s 8(2) of the same Act.
Legal Issues
- Whether the company had breached its duty to ensure the health, safety and welfare of its employees under s 8(1) of the Occupational Health and Safety Act 2000
- Whether the company had breached its duty to protect a non-employee from risks arising from its undertaking under s 8(2) of the same Act
- What penalties were appropriate, having regard to the objective seriousness of the offences, the company's mitigating circumstances, and the principles of retribution and deterrence
- What discount was appropriate to reflect the company's early guilty pleas
Decision
The company entered guilty pleas at the earliest opportunity, entitling it to a 25% reduction in penalty. The court noted several mitigating factors: the company's long record of safe operation, its extensive pre-existing occupational health and safety documentation, its full cooperation with WorkCover following the accident, its genuine remorse, and the steps it had taken after the incident to tighten procedures. The court was satisfied that the company ordinarily took its safety obligations seriously.
Despite those mitigating factors, Judge Finnane QC characterised the breaches as objectively very serious. The workers had no licences, no harnesses, no hard hats, and no understanding of the alarm system. Supervision on the day was, in the court's words, non-existent. The court rejected any suggestion that responsibility could be deflected to the supervisor Mr Alameddine, who had left the country and was the subject of separate proceedings. The duty to ensure that supervisors performed their functions correctly rested with the company.
The court made pointed observations about the inadequacy of paper-based compliance systems. Having procedures recorded in thick manuals and obtaining workers' signatures confirming they had read them is not sufficient, particularly in industries involving genuine physical danger. Supervisors must actively intervene when workers behave unsafely, regardless of whether documented procedures exist.
The court determined that imposing a penalty near the maximum of $550,000 per offence would be inappropriate, as it would risk forcing the company out of business and would exceed the punishment warranted. Nevertheless, the penalty needed to be sufficiently significant to signal to the building industry that paper compliance alone is inadequate.
Orders Made
- Fine of $150,000 imposed for the offence under s 8(1) (failure to ensure employee health, safety and welfare)
- Fine of $10,000 imposed for the offence under s 8(2) (failure to protect a non-employee from safety risks)
- Defendant ordered to pay WorkCover's agreed costs
- A moiety (50%) of both fines ordered to be paid to WorkCover
Key Takeaways
- An employer cannot discharge its statutory safety obligations by delegating responsibility to supervisors or employees. The duty to ensure those individuals perform their functions safely remains with the employer.
- Extensive written occupational health and safety documentation, combined with signed acknowledgements from workers, does not of itself constitute adequate compliance. Active supervision that intervenes in unsafe conduct is required, particularly in industries involving physical danger.
- The District Court confirmed that the absence of prior convictions, a long record of safe operation, early guilty plea, genuine remorse, and post-incident remediation are all recognised mitigating factors in workplace safety sentencing, but they do not overcome the objective gravity of breaches that result in death.
- Under the Occupational Health and Safety Act 2000 as it applied to these January 2011 offences, the "reasonably practicable" qualification had not yet been incorporated into ss 8(1) and 8(2), a point the court noted after being corrected by counsel mid-judgment.
- A 25% discount applied to reflect guilty pleas entered at the earliest opportunity, consistent with the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Occupational Health and Safety Act 2000 (NSW), ss 8(1) and 8(2) (since repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases cited: None identified in the judgment text or metadata.