Citation: SafeWork NSW v Walgett Shire Council [2023] NSWDC 70
Court: District Court of New South Wales
Date: 24 March 2023
Judge: Scotting DCJ
Background
Walgett Shire Council (the Council) is a local government body in north-west New South Wales. Under a maintenance contract with Roads and Maritime Services (RMS), the Council was engaged as principal contractor to carry out shoulder widening works on sections of the Kamilaroi Highway near Cryon and Walgett.
On 21 June 2018, workers at the site were executing a "Switch": a procedure for moving traffic control signs, barrier boards and cones from one side of the road to the other after completing work on one lane. The Switch required workers to be on foot in areas where mobile plant and vehicles could move. During the Switch, a worker on foot was exposed to serious risk from a grader operating nearby. The site lacked adequate controls for managing the interaction between workers on foot and moving plant.
SafeWork NSW prosecuted the Council under the Work Health and Safety Act 2011 (the Act). The Council pleaded guilty to failing to comply with its primary duty of care as a person conducting a business or undertaking, contrary to section 33 of the Act.
Legal Issues
- Whether the Council failed to discharge its primary health and safety duty under section 19(1) of the Act in relation to workers on foot during the Switch procedure
- The appropriate sentence, including the objective seriousness of the offending, relevant aggravating and mitigating factors, and the Council's capacity to pay a fine
- Whether a Work Health and Safety Project Order under section 238 of the Act was appropriate in addition to a financial penalty
Decision
The court accepted the Agreed Statement of Facts, which disclosed a series of systemic failures. The Council had no adequate site-specific Workers on Foot Plan (WOFP) for the Work Site. The generic WOFP did not specify zone sizes or distances, no site-specific sketch was prepared, and workers were unaware of the exact boundaries of the zones. The relevant work zones, including turn-around bays, were not demarcated as required.
On the day of the incident, the Site Marshall was simultaneously operating a grader and directing the Switch, rather than stopping the grader to perform his coordination role exclusively. No spotter was appointed to supervise workers on foot and warn them of hazards from mobile plant. Neither the Safe Work Method Statement nor the WOFP clearly prohibited mobile plant movement while workers were on foot in the work area.
In assessing the sentence, the court considered the objective seriousness of the offence, noting the foreseeable risk of serious injury or death to workers exposed to moving heavy plant. Mitigating factors included the Council's guilty plea, absence of prior convictions, evidence of remorse, and steps taken since the incident to improve safety systems. The court also considered the Council's capacity to pay a fine as a regional local government body with limited financial resources.
The court imposed a fine and, in addition, made a Work Health and Safety Project Order requiring the Council to share its improved safety systems with other NSW local councils engaged in road construction work.
Orders Made
- The Council was convicted of the offence under section 33 of the Work Health and Safety Act 2011
- A financial penalty (fine) was imposed, reflecting the objective seriousness and mitigating factors
- A Work Health and Safety Project Order under section 238 of the Act was made, requiring the Council to:
- Conduct two Briefing Sessions for representatives of NSW local councils on the Switch system of work, with all materials approved by SafeWork NSW
- Within 30 days, publish a link on its public website allowing any road construction organisation to request the Switch documentation, and provide that documentation on request for 12 months
- Within 90 days, write to all NSW local council General Managers inviting attendance at the Briefing Sessions, with at least 60 days' notice of the time, date and location
- Hold the Briefing Sessions no less than 180 days from the date of the Order
- Keep records of all key compliance actions for 12 months and provide those records to SafeWork NSW (with personal information of non-employees redacted)
- The Council was ordered to pay SafeWork NSW's costs of the proceedings, as agreed or assessed
Key Takeaways
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The District Court confirmed that a failure to develop and implement a site-specific workers on foot plan, combined with a failure to separate the roles of mobile plant operator and site coordination during a high-risk procedure, constituted a serious breach of the primary duty under section 19(1) of the Work Health and Safety Act 2011.
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A guilty plea, absence of prior convictions, demonstrated remorse, and post-incident remediation all operated as mitigating factors at sentencing, though none displaced the need for a penalty reflecting both specific and general deterrence.
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Where a defendant is a regional local government body with constrained finances, a court may take capacity to pay into account when calibrating the quantum of any fine.
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Under section 238 of the Act, a Work Health and Safety Project Order can extend beyond the defendant itself, requiring the offender to disseminate improved safety systems to an entire sector. Here, the Order was directed at all NSW local councils engaged in road construction.
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Systemic documentation failures, such as relying on generic rather than site-specific safety plans, and failing to enforce the demarcation of work zones, are treated as aggravating indicators of the overall inadequacy of a safety system rather than as merely technical shortcomings.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 33, 238
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW)
- Local Government Act 1993 (NSW)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383