Citation: SafeWork NSW v Elcorp Commercial Pty Ltd & Salvatore Treffiletti [2022] NSWDC 198
Court: District Court of New South Wales
Date: 7 June 2022
Judge: Strathdee DCJ
Background
Elcorp Commercial Pty Ltd was a labour hire company operating within a larger formwork group of businesses. On 7 February 2019, workers at Elcorp's Smeaton Grange premises were directed to move formwork screens using a tower crane. The worker operating the crane held no qualifications for that task, and the worker acting as a guide on top of the screens held no dogman qualifications.
During the operation, the guiding worker fell between stacks of formwork screens and sustained severe injuries to his leg and knee, requiring surgery and leaving him with long-term physical and financial consequences. His capacity for paid work and his role as the primary carer for his son with a disability were both significantly diminished.
Elcorp's sole director had been present on site and had directed that the screen-moving task be carried out. No Safe Work Method Statement (SWMS) had been prepared for the task, and no licensed operator or dogman was used, despite the work constituting "high risk construction work" under the Work Health and Safety Regulation 2017 (NSW).
Legal Issues
- Whether Elcorp, as a person conducting a business or undertaking (PCBU), failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as reasonably practicable, the health and safety of workers, thereby exposing them to a risk of death or serious injury contrary to s 32 of the Act.
- Whether the director, as an officer of Elcorp, failed to exercise due diligence to ensure the company met that duty, contrary to ss 27(1) and 32 of the Act.
- What the appropriate sentence was for each defendant, having regard to objective seriousness, mitigating and aggravating factors, and the utilitarian value of early guilty pleas.
Decision
Both defendants pleaded guilty on 13 December 2021. The court proceeded to sentencing having accepted the agreed statements of fact and the particulars in the amended summonses.
The court assessed the objective seriousness of the offences as significant. The work involved was classified as high-risk construction work, yet no SWMS had been prepared, no qualified crane operator or dogman was engaged, and no safe system of work was in place for the crane operations. Guidance materials were readily available from SafeWork NSW and SafeWork Australia, and the failings were straightforward to have avoided.
On mitigation, the court accepted several factors in both defendants' favour: cooperation with the SafeWork investigation, no prior convictions, genuine remorse and contrition, good corporate character evidenced by charitable activities, and sound remedial steps taken after the incident. The prosecutor did not contest that the maximum guilty plea discount of 25% was available, and the court applied that discount to the fines for both defendants.
The court set a pre-discount fine of $400,000 for Elcorp and $30,000 for the director, then reduced each by 25%.
Orders Made
- Elcorp Commercial Pty Ltd convicted and fined $300,000 (reduced from $400,000 by 25% for early guilty plea).
- Salvatore Treffiletti convicted and fined $22,500 (reduced from $30,000 by 25% for early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of each fine is to be paid to the prosecutor (SafeWork NSW).
- The defendants are to pay the prosecutor's agreed costs of $40,000.
Key Takeaways
- A PCBU that deploys unqualified workers on high-risk construction work, specifically crane operations requiring a licensed operator and a qualified dogman, and fails to prepare a required SWMS, exposes itself to significant criminal liability under the Work Health and Safety Act 2011 (NSW).
- Under s 27(1) of the Act, an officer's duty of due diligence is personal and distinct from the company's duty; a director can be convicted and fined individually even where the company is also convicted for the same underlying failures.
- The District Court applied a 25% discount from the base fine in recognition of the utilitarian value of early guilty pleas, consistent with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383.
- Mitigating factors, including cooperation with the regulator's investigation, genuine remorse, no prior convictions, and post-incident remediation, all bear on the appropriate base penalty, but do not displace the court's need to reflect general deterrence in a serious workplace safety matter.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), half of any penalty imposed in a WHS prosecution is directed to the prosecuting regulator, a structural feature of the regime that practitioners should note when advising on the financial consequences of a conviction.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 32
- Work Health and Safety Regulation 2017 (NSW), cl 291
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Markarian v The Queen (2005) 228 CLR 357
- Veen v R (No. 2) (1988) 164 CLR 465
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Poletti Corporation [2019] NSWDC 491
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464