Citation: SafeWork NSW v Voltex Trading Pty Ltd [2023] NSWDC 129
Court: District Court of New South Wales
Date: 1 May 2023
Judge: Scotting DCJ
Background
Voltex Trading Pty Ltd operates a business installing solar photovoltaic systems at commercial and residential properties. In May 2020, Voltex was engaged by Bell Solar Pty Ltd (trading as SUNBoost) to install a 20-panel solar system on the roof of a shearing shed at a rural property near Alectown, NSW. Neither Bell nor Voltex inspected the property or conducted any risk assessment before sending workers to site.
On 28 May 2020, three workers arrived at the property: a licensed electrician, an apprentice electrician, and a roofer who was a sole trader subcontracted to Voltex. While on the roof, the roofer stepped onto a skylight covered in dirt and discolouration, which gave way under his weight. He fell 3.75 metres to the wooden floor below, suffering a spinal fracture and bruising.
SafeWork NSW prosecuted Voltex under the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary health and safety duty, thereby exposing both the roofer and the apprentice electrician to a risk of death or serious injury. Voltex pleaded guilty.
Legal Issues
- Whether Voltex failed to comply with the primary duty of care owed to workers under s 19(1) of the Work Health and Safety Act 2011 (NSW), constituting a category 2 offence under s 32 of that Act
- What the appropriate penalty was, having regard to objective seriousness, aggravating factors, mitigating factors, and the guilty plea discount
- What discount, if any, should be applied to reflect the guilty plea, remorse, cooperation with investigators, and post-incident remediation
Decision
The court convicted Voltex of the offence under s 32 of the Work Health and Safety Act 2011 (NSW). The objective seriousness of the offence was treated as a significant consideration. No site inspection or risk assessment had been conducted before workers accessed the roof, and the Safe Work Method Statement (SWMS) in place at the time was materially deficient: it required caution around fragile materials but did not prohibit work on such surfaces, did not require skylights to be identified or covered, and its site-specific section was not completed on the day.
Voltex's own guidance material was available from SafeWork NSW at the time. The court noted that a SafeWork NSW instructional video published three months before the incident provided comprehensive, step-by-step guidance on exactly the risks that materialised. The court rejected the submission that SafeWork NSW should do more to educate solar installers, finding this criticism entirely inappropriate in the circumstances.
On mitigation, the court accepted that Voltex had no prior convictions, had cooperated with the SafeWork investigation, demonstrated genuine remorse (including the director personally supporting the injured worker through his recovery), and had made meaningful post-incident improvements to its SWMS. These improvements included requirements to assume roofing material is fragile unless confirmed otherwise, to identify skylights before accessing a roof, and to barricade skylights before commencing work. The injured worker himself wrote to the court seeking leniency for the offender.
The court assessed the appropriate fine before discount at $240,000, then applied a 25% reduction for the early guilty plea, arriving at a final penalty of $180,000. The court also ordered that 50% of the fine be paid to SafeWork NSW as prosecutor, in accordance with s 122(2) of the Fines Act 1996.
Orders Made
- Voltex Trading Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- Fine of $180,000 imposed (reduced from $240,000 by 25% for the guilty plea)
- Voltex to pay the prosecutor's costs of the proceedings, as agreed or assessed
- 50% of the fine to be paid to SafeWork NSW pursuant to s 122(2) of the Fines Act 1996
Key Takeaways
- A solar installation company's failure to conduct any site inspection or risk assessment before workers accessed a roof containing concealed skylights was found to constitute a serious breach of the primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW).
- The presence of a Safe Work Method Statement does not, of itself, discharge a duty holder's obligations: the District Court found Voltex's SWMS inadequate because it lacked specific controls for skylights and its site-specific section was left blank on the day of the incident.
- Post-incident remediation, genuine remorse, cooperation with investigators, and an absence of prior convictions were all accepted as mitigating factors, but did not reduce the level of objective seriousness attributed to the offending.
- Upholding the 25% guilty plea discount, the court applied the approach in R v Thomson & Houlton and R v Borkowski, treating the plea as both carrying utilitarian value and as an indicator of remorse.
- The court dismissed the proposition that responsibility for safety education should shift to the regulator where an industry operates on tight margins, finding that publicly available SafeWork NSW guidance directly addressed the relevant risks before the incident occurred.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412
- SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407
- SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437
- SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75
- SafeWork NSW v Leda Form Group Pty Ltd [2022] NSWDC 524
- SafeWork NSW v LJW Solar Pty Ltd [2022] NSWDC 526
- SafeWork NSW v McInerney Enterprises Pty Ltd
- SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13
- SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse [2022] NSWDC 290
- SafeWork NSW v Taylor McInerney [2023] NSWDC 56