Citation: SafeWork NSW v Prime Metal Roofing Pty Ltd [2023] NSWDC 15
Court: District Court of New South Wales
Date: 8 February 2023
Judge: Russell SC DCJ
Background
Prime Metal Roofing Pty Ltd was a labour-hire company supplying workers to metal roofing businesses. It had been incorporated for only two months when, on 11 February 2019, one of its workers, a 25-year-old man, was electrocuted on a roof at a warehouse site in Moorebank. He was dismantling edge protection and holding a steel handrail that came into contact with energised overhead powerlines. A second worker standing nearby suffered severe flash burns to his legs.
The site involved a chain of contractors. A principal builder had engaged a roofing contractor, which in turn engaged Prime Metal to supply the labour performing the roofing work. Prime Metal had no work health and safety system of its own, instead relying on the safety systems of the other contractors on site.
SafeWork NSW prosecuted Prime Metal under the Work Health and Safety Act 2011 (NSW) for failing, as a person conducting a business or undertaking, to comply with its duty to ensure worker health and safety, thereby exposing the two workers to a risk of death or serious injury. Prime Metal ultimately pleaded guilty.
Legal Issues
- Whether Prime Metal, as a labour-hire PCBU, bore its own non-delegable duty under s 19 of the Work Health and Safety Act 2011 (NSW) to ensure the health and safety of its workers, independent of any obligations held by other contractors on site.
- What penalty was appropriate, having regard to the objective seriousness of the offence, mitigating and aggravating factors, the guilty plea, general and specific deterrence, and the company's capacity to pay.
- Whether victim impact statements from the deceased worker's family should be taken into account in determining punishment.
- Whether prosecution costs should be ordered against Prime Metal.
Decision
The court confirmed that Prime Metal's duty under s 19 of the Work Health and Safety Act 2011 (NSW) was both personal and non-delegable. Sections 14 and 16 of the Act make clear that a duty cannot be transferred to another person, and that where multiple persons hold the same duty, each must independently comply with it. Prime Metal's decision to rely entirely on the safety systems of the other contractors on the site was a fundamental failure: had any one of the three PCBUs on site properly discharged its obligations, the court found, the fatal incident would not have occurred.
The court identified several failures by Prime Metal: it did not verify that a site-specific risk assessment had been conducted, did not confirm that powerlines had been de-energised before work began, did not verify the adequacy or implementation of a Safe Work Method Statement addressing the powerline hazard, and did not prohibit workers from dismantling edge protection within four metres of energised lines. Prime Metal's directors were young and inexperienced in commercial matters, and the company had been operating for only two months at the time, but those circumstances did not excuse the absence of any safety system.
On penalty, the court assessed the appropriate fine at $500,000, before applying a 25 per cent reduction to reflect the early guilty plea. This produced a final fine of $375,000. The court also received a joint victim impact statement from the deceased worker's father, mother, sisters and partner, read aloud to the court by the father. The court determined it was appropriate to take those statements into account in connection with punishment. Notably, the family members expressed that they did not personally blame Prime Metal's two directors, and acknowledged that the directors had visited the family home to apologise and accept their level of responsibility.
A procedural complication arose during the proceedings: Prime Metal had been deregistered by ASIC on 21 August 2021, which rendered steps taken after that date a nullity. The company was subsequently reinstated to the register under s 601AH of the Corporations Act 2001 (Cth), allowing the sentencing proceedings to continue.
Orders Made
- Prime Metal Roofing Pty Ltd convicted on 16 December 2022.
- Prime Metal Roofing Pty Ltd ordered to pay a fine of $375,000 (being the base fine of $500,000 reduced by 25% for the early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Prime Metal Roofing Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- Under the Work Health and Safety Act 2011 (NSW), a PCBU's duty to ensure worker health and safety is non-delegable. A labour-hire company cannot discharge that duty by relying on the safety systems of other contractors operating at the same site, regardless of contractual arrangements between the parties.
- Where multiple PCBUs are present on a worksite, each must independently comply with its duty to the standard required by the Act. The presence of other duty-holders does not diminish any single PCBU's individual obligations.
- The District Court treated the employer relationship between Prime Metal and the workers on the roof as a factor of particular weight: both criminal law and common law impose a non-delegable duty on employers with respect to their own employees.
- A 25 per cent reduction in the base penalty was applied to reflect an early guilty plea, consistent with the sentencing principles applicable to WHS prosecutions in New South Wales.
- Deregistration of a corporate defendant during proceedings creates significant procedural complications; reinstatement under the Corporations Act 2001 (Cth) was required before sentencing could proceed.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 17, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Corporations Act 2001 (Cth), s 601AH
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261
- SafeWork NSW v Riverwall Constructions Pty Ltd [2022] NSWDC 408
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125