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District Court 22 November 2019

Safework NSW v Orbit Formwork Pty Ltd

[2019] NSWDC 685

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: Safework NSW v Orbit Formwork Pty Ltd [2019] NSWDC 685
Court: District Court of New South Wales
Date: 22 November 2019
Judge: Russell SC DCJ

Background

Orbit Formwork Pty Ltd was a subcontractor engaged to carry out formwork, steel-fixing, and concreting at a boarding house construction site in Kingsford, NSW. The company employed Mr Ali Jabur, a casual formwork labourer, on his very first day at that site. Mr Jabur had no prior formwork experience, held only a basic White Construction Card, and had limited English communication skills.

A gap of approximately 1.17 metres existed between the building's return on Level 2 and the adjacent scaffolding. The company's own supervisor had identified and photographed this unprotected edge roughly ten days before the incident, and had raised concerns with both the principal contractor and the company's director. Despite this, no exclusion zone, barricade, or instruction was put in place to protect workers from the hazard.

On 23 March 2017, Mr Jabur was paired with another worker of limited formwork experience and assigned to strip formwork columns on Level 2, including one column directly adjacent to the unprotected void. While removing supporting timber beams from that column, he fell approximately six metres onto a concrete slab below, sustaining multiple fractures, lacerations, and muscular injuries.

  • Whether Orbit Formwork Pty Ltd, as a person conducting a business or undertaking (PCBU), failed to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing a worker to a risk of death or serious injury contrary to s 32 of that Act.
  • The appropriate sentence, including the objective seriousness of the offence, applicable mitigating and aggravating factors, and the weight to be given to general and specific deterrence.
  • Whether the fine should be reduced on account of the offender's financial capacity to pay.
  • The appropriate discount for an early guilty plea.

Decision

Orbit Formwork pleaded guilty to the charge. The court accepted the agreed statement of facts and proceeded to sentence. The offence involved a well-known and identified risk that the company had the means and knowledge to control, yet it assigned an inexperienced, linguistically isolated worker to perform physically demanding tasks beside an unprotected six-metre drop without any induction, adequate instruction, or fall protection.

The court assessed the offence as being in the moderate to upper range of objective seriousness. The risk had been identified by the offender's own supervisor; the precautions available (such as exclusion zones, barricades, or ceasing work in the area) were obvious and within the offender's control; and a vulnerable, inexperienced worker suffered severe consequences. The court noted that the company's culpability was reduced only to the extent that a principal contractor and scaffold company also bore some responsibility for the unsafe site conditions.

In mitigation, the court accepted that the company had no prior convictions, expressed remorse, co-operated fully with the investigation, and had implemented corrective measures following the incident. A 25% discount was applied for the early guilty plea. No reduction was made on the basis of capacity to pay, as the court found no sufficient evidentiary basis for such a reduction and noted that general deterrence remained a weighty consideration regardless.

The court also used the sentencing remarks to observe a broader concern: falls-from-height incidents remain at near-epidemic levels in NSW, with 1,414 reported incidents and 22 deaths across just three years. The court flagged that if current penalty levels continue to fail as a deterrent, courts may need to consider whether fines above current levels are warranted.

Orders Made

  • Orbit Formwork Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
  • Fine of $180,000 imposed (reflecting a 25% reduction from a base fine of $240,000 for the early guilty plea).
  • 50% of the fine ($90,000) ordered to be paid to the prosecutor (SafeWork NSW) pursuant to s 122(2) of the Fines Act 1996 (NSW).
  • Offender ordered to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • A PCBU's awareness of an unprotected edge hazard, combined with its failure to implement any protective measures before assigning an inexperienced worker to the danger zone, placed this offence in the moderate to upper range of objective seriousness.
  • Under the Work Health and Safety Act 2011 (NSW), the maximum penalty for a Category 2 offence by a corporation is $1,500,000; the base fine of $240,000 reflected the court's calibration against comparable sentencing decisions for falls-from-height matters in the District Court.
  • An early guilty plea attracted a 25% discount, consistent with established sentencing practice in NSW.
  • Where an offender seeks a reduction in fine on grounds of limited financial capacity, it bears the evidentiary burden of establishing that capacity; the court here found that burden was not discharged, and general deterrence can independently justify a substantial fine.
  • The District Court expressly noted the persistent failure of current penalty levels to reduce falls-from-height incidents across the industry, and signalled that courts may need to revisit whether higher penalties are required to achieve the statutory objective of general deterrence.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)

Cases
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Safework NSW v Emu Group Pty Limited [2019] NSWDC 537
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465