Citation: [2023] NSWDC 501
Court: District Court of New South Wales
Date: 17 November 2023
Judge: Scotting DCJ
Background
The offender, a Sydney-based labour hire company supplying temporary workers to the construction industry, was engaged in January 2021 to provide general labourers to a roofing contractor carrying out works at the Hurstville Aquatic Leisure Centre. One of those labourers, placed on his first day of employment with the offender, was assigned to assist workers carrying out internal roofing works from an elevated work platform.
Before placing the worker on site, the offender failed to provide an adequate safety induction, conduct a workplace assessment, consult with the host employer or principal contractor about hazards, or monitor whether appropriate health and safety measures were in place. On 9 February 2021, the worker fell from height and suffered injuries. The court accepted that the fall itself was not caused by any act or omission of the offender.
SafeWork NSW prosecuted the offender for failing to comply with its primary duty of care under s 19(1) of the Work Health and Safety Act 2011 (NSW), an offence under s 33 of that Act. The offender pleaded guilty.
Legal Issues
- Whether the offender breached its primary health and safety duty as a person conducting a business or undertaking (PCBU) under s 19(1) of the Work Health and Safety Act 2011 (NSW)
- The appropriate objective seriousness of the offence for sentencing purposes
- What aggravating and mitigating factors applied
- What penalty, including any guilty plea discount, was appropriate
Decision
The District Court proceeded to sentence on the agreed facts. The offender's conduct was found to involve meaningful failures: it did not induct the worker with clear safety information, did not consult with the host employer or principal contractor before the placement, did not assess workplace hazards, and did not monitor the site. These omissions occurred despite the offender operating in the construction labour hire industry, where workers are routinely exposed to a range of risks at third-party sites.
On objective seriousness, the court accepted that the failures were significant but also took into account that the incident itself was not caused by the offender's omissions, and that the risk arose from the nature of construction work rather than any particularly egregious act. The maximum penalty for the offence was $588,540.
General deterrence was identified as a significant sentencing consideration, consistent with the principle established in Bulga Underground Operations Pty Ltd v Nash that PCBUs must treat their safety obligations seriously. Some specific deterrence was also warranted, given the offender continued to operate a labour hire business placing workers in varied and potentially hazardous environments. However, the court acknowledged the offender had since taken substantial remedial steps, including employing a dedicated safety coordinator, overhauling induction processes, developing safe work method statement templates, and increasing site assessment frequency.
No aggravating factors were found. Mitigating factors included the absence of prior convictions, the company's relatively short operating history (since 2019), evidence of genuine remorse, good prospects of rehabilitation demonstrated by the remedial steps taken, and the guilty plea. The court applied a 25% discount on the fine to reflect the utilitarian value of the plea, consistent with the principles in R v Thomson and Houlton and R v Borkowski.
Orders Made
- The offender, HLH NSW Pty Ltd, was convicted of the offence under s 33 of the Work Health and Safety Act 2011 (NSW).
- A fine of $110,000 was assessed as appropriate before discount.
- A 25% guilty plea discount was applied, resulting in a fine of $82,500.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
- The offender is to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- Under the Work Health and Safety Act 2011 (NSW), a labour hire company's duty as a PCBU extends to inducting workers on safety matters, assessing host employer workplaces, consulting with host employers and principal contractors about hazards, and monitoring safety conditions before and during placements.
- General deterrence carries significant weight in WHS sentencing, with the District Court affirming that both small and large businesses are expected by the community to comply with their safety obligations.
- A guilty plea discount of 25% was applied where the plea was entered and the offender demonstrated genuine remorse and cooperation, consistent with established sentencing principles in R v Thomson and Houlton and R v Borkowski.
- Remedial steps taken after an incident, including employing dedicated safety personnel and overhauling safety systems, can support findings of good rehabilitation prospects and bear on the weight given to specific deterrence.
- The fact that an injury was not causally linked to the offender's specific omissions did not extinguish liability; the duty to take reasonable precautions existed independently of whether the breach caused the harm.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), (h), (i), (k) and s 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1