Citation: SafeWork NSW v Prime Metal Roofing Pty Ltd (No. 2) [2023] NSWDC 16
Court: District Court of New South Wales
Date: 8 February 2023
Judge: Russell SC DCJ
Background
A labour-hire roofing company, incorporated only weeks before the incident, was engaged to provide workers to assist in stripping asbestos roofing sheets from a commercial building at Moorebank. The roofing work was part of a larger insurance reinstatement project involving multiple contractors. On 28 February 2019, timber purlins supporting the roof failed under the weight of stacked removed sheets, and two workers fell approximately four metres through the roof and wire safety mesh onto concrete below. A third worker narrowly avoided the same fate.
The defendant company was newly formed, with two young and commercially inexperienced directors who had backgrounds as roofers. The company had no work health and safety system of its own and instead relied on the safety systems of the principal roofing contractor, Perry's Roofing Pty Ltd, which directed the work on site.
The defendant pleaded guilty to a charge under section 32 of the Work Health and Safety Act 2011 (NSW) of failing to comply with its primary duty as a person conducting a business or undertaking (PCBU) under section 19, thereby exposing three named workers to a risk of death or serious injury. The maximum penalty for the offence is a fine of $1,500,000.
Legal Issues
- Whether a PCBU can discharge its work health and safety duty by relying on the systems of another PCBU operating on the same site
- The objective seriousness of the offending and where it fell on the sentencing range
- The appropriate penalty, having regard to mitigating factors (including the early guilty plea and the defendant's relative inexperience and lesser culpability compared to Perry's Roofing)
- The defendant's capacity to pay, given the company had ceased trading and was temporarily deregistered during proceedings
- Whether costs should be awarded to the prosecutor
Decision
The court confirmed that under sections 14 and 16 of the Work Health and Safety Act 2011 (NSW), a WHS duty cannot be transferred or delegated. More than one PCBU can hold the same duty simultaneously, and each must discharge it independently. The defendant's reliance on Perry's Roofing's safety system did not satisfy its own obligations. The court observed that if even one PCBU on site had properly performed its duty, the incident would not have occurred.
The court assessed the objective seriousness of Prime Metal's breach as falling in the low-to-middle range, treating it as less culpable than Perry's Roofing (whose breach had been assessed in the high range in related sentencing proceedings). Prime Metal was a small, newly incorporated company providing labour under the effective direction of Perry's Roofing. Its directors were naïve and inexperienced in commercial matters. The company had not traded since the incident.
In determining the appropriate fine, the court noted that no submission was made about capacity to pay, so that issue did not require resolution. The court assessed an appropriate base fine of $160,000, then reduced it by 25 percent to reflect the early guilty plea, arriving at a penalty of $120,000.
Orders Made
- Prime Metal Roofing Pty Ltd convicted of the offence
- Fined $120,000 (reduced from a base of $160,000 by 25% for the early guilty plea)
- 50% of the fine to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996 (NSW)
- Prime Metal Roofing Pty Ltd to pay the prosecutor's costs
Key Takeaways
- Under sections 14 and 16 of the Work Health and Safety Act 2011 (NSW), a PCBU's duty is non-delegable and cannot be satisfied by relying on another contractor's safety systems, even where that other contractor directs the work on site.
- Where multiple PCBUs operate on a site, each independently bears the full standard of care. The District Court reinforced that proper compliance by any one PCBU may prevent an incident, but the duty of each remains personal and concurrent.
- Relative inexperience and commercial naivety of company directors, along with a company's status as a small, newly incorporated labour-hire operation working under another contractor's direction, are relevant to objective seriousness and can place a breach in the lower range compared to a more experienced principal contractor.
- An early guilty plea attracted a 25 percent discount on the base penalty, consistent with established New South Wales sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Temporary deregistration of a corporate defendant during proceedings rendered steps taken in that period a nullity; reinstatement by ASIC under section 601AH of the Corporations Act 2001 (Cth) was required before proceedings could validly continue.
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 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Corporations Act 2001 (Cth), s 601AH
Cases
- SafeWork NSW v Perry's Roofing Pty Ltd (No. 2) [2022] NSWDC 262
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465