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District Court 18 December 2020

SafeWork NSW v Aceline Plumbing Group Pty Ltd

[2020] NSWDC 774

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

Citation: SafeWork NSW v Aceline Plumbing Group Pty Ltd [2020] NSWDC 774
Court: District Court of New South Wales
Date: 18 December 2020
Judge: Strathdee DCJ

Background

Aceline Plumbing Group Pty Ltd was a licensed roof plumbing business whose sole director, Mr Ayad, entered into a referral agreement with Easy Fall Guttering Pty Ltd. Under that arrangement, Easy Fall would source customers and refer guttering installation jobs to Aceline. Aceline, in turn, permitted an unlicensed sole trader, Mr Hogan, to perform installations under its licence in exchange for a fee of approximately 10% of the installation price.

In April and May 2017, Mr Hogan was directed by Easy Fall to install guttering at a residential property in Kangaroo Point. He raised safety concerns about the difficult rear section of the property on multiple occasions, including with Easy Fall's director and with Mr Ayad himself. Neither provided any safe work method or instruction on working at heights. Easy Fall's director dismissed Mr Hogan's concerns with words to the effect that "a man of your calibre should be able to work it out."

On 16 May 2017, while working alone on the installation, Mr Hogan suffered a serious fall from height. Aceline failed to notify SafeWork NSW of the incident immediately after becoming aware of it, and failed to consult, cooperate, and coordinate with other duty holders under the Work Health and Safety Act 2011 (NSW). Aceline was subsequently prosecuted on both counts and entered early pleas of guilty.

  • Whether Aceline breached section 38 of the Work Health and Safety Act 2011 (NSW) by failing to notify SafeWork NSW immediately after becoming aware of a notifiable incident arising from its business or undertaking.
  • Whether Aceline breached section 46 of the Act by failing to consult, cooperate, and coordinate activities with other persons who had duties under sections 19(1) and 28 of the Act.
  • What the appropriate penalty was for each offence, having regard to objective seriousness, mitigating and aggravating factors, specific and general deterrence, and capacity to pay.

Decision

The court convicted Aceline on both counts. On the section 38 offence (failure to notify), the court assessed the appropriate penalty before discount at $40,000, representing 80% of the $50,000 maximum. On the section 46 offence (failure to consult, cooperate, and coordinate), the court assessed the appropriate penalty before discount at $80,000, representing 80% of the $100,000 maximum. The objective seriousness of both offences was treated as high.

Several aggravating features were identified. Aceline knowingly permitted an unlicensed worker to carry out work under its licence for financial gain. Mr Hogan had explicitly communicated his safety concerns to both Easy Fall's director and Mr Ayad, yet Aceline took no steps to provide safe work methods or controls for working at heights. The court found that Aceline's conduct was motivated by profit and that the arrangement directly contributed to the risk that materialised in Mr Hogan's fall.

The court was highly critical of Mr Ayad's evidence and his claims of good character. The court found that Mr Ayad had shown no concern for the safety of workers or contractors, had made no changes to his operations following the incident, and had not demonstrated any genuine remorse. The court expressed no confidence that Aceline would not re-offend, which it treated as a factor precluding leniency on grounds of specific deterrence.

The court declined to reduce the fines on the basis of claimed financial hardship. It found Mr Ayad's evidence about Aceline's financial position to be unreliable, and held that the objective seriousness of the offending required significant penalties to give effect to both specific and general deterrence. Each fine was reduced by 25% to reflect the early guilty pleas.

Orders Made

  • Aceline Plumbing Group Pty Ltd is convicted on both charges.
  • For the section 38 offence (failure to notify): a fine of $30,000 (reduced by 25% from $40,000 for the early guilty plea).
  • For the section 46 offence (failure to consult, cooperate, and coordinate): a fine of $60,000 (reduced by 25% from $80,000 for the early guilty plea).
  • 50% of each fine is to be paid to SafeWork NSW as prosecutor, pursuant to section 122(2) of the Fines Act 1996 (NSW).
  • Aceline is to pay the prosecution's costs as agreed or assessed.

Key Takeaways

  • Permitting an unlicensed worker to perform licensed work in exchange for a fee, in circumstances where safety concerns were known and ignored, was treated as a significant aggravating factor going to objective seriousness under the Work Health and Safety Act 2011 (NSW).

  • Where a defendant in a WHS prosecution demonstrates no remorse, makes no post-incident changes to its operations, and offers no credible basis for confidence against re-offending, the court will not reduce penalties on the grounds of specific deterrence.

  • A sentencing court may decline to give weight to claimed financial hardship where the defendant's evidence on financial capacity is found to be unreliable.

  • General deterrence carries particular weight in WHS sentencing. The District Court held that reducing a fine below what the objective seriousness of the conduct warranted would fail to send the appropriate message to employers about their obligations to protect workers from risks of death or serious injury.

  • An early guilty plea attracted a 25% discount on each fine, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999 (NSW), even where other mitigating factors were unavailable to the defendant.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), sections 19(1), 28, 38, 46
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), section 122(2)
- Home Building Act 1989 (NSW)
- Plumbing and Drainage Act 2011 (NSW)

Cases:
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Jahandideh v R [2014] NSWCCA 178
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- Markaian v The Queen (2005) 228 CLR 357
- McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310
- Morrison v Powercoal Pty Limited & Anor (No 3) [2005] NSWIRComm 61
- Orbit Drilling Pty Ltd v The Queen; Smith v R [2012] VSCA 82
- R v Cage [2006] NSWCCA 304
- R v Miria [2009] NSWCCA 68
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Veen v R (No 2) (1988) 164 CLR 465
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151