Citation: SafeWork NSW v BKH Contractors Group Pty Ltd [2025] NSWDC 401
Court: District Court of New South Wales
Date: 3 October 2025
Judge: Strathdee DCJ
Background
BKH Contractors Group Pty Ltd (the defendant contractor) was engaged by principal contractor Multiplex to manage the erection, modification, operation and dismantling of self-climbing jump form systems during construction of the Western Sydney International Airport at Badgerys Creek. BKH in turn engaged a labour hire firm, Premier Labour, to supply workers for that task, including a site foreman.
On 7 June 2022, the foreman was removing trailing decks, vertical columns and hangers from a lift shaft to allow a hoist to be installed the following day. To carry out this work, he constructed his own temporary work platform using scrap plywood and laminated veneer lumber spanning the void of the shaft. No fall protection system was in use, no specific Safe Work Method Statement (SWMS) had been developed for the task, and no exclusion zone was established below him.
Shortly after 4.00pm, the plywood snapped under the foreman. He fell approximately five metres onto two workers performing formwork below him. The foreman sustained rib fractures, kidney lacerations, a shoulder injury and a wrist fracture. Two other workers also sustained injuries.
Legal Issues
- Whether BKH, as a person conducting a business or undertaking (PCBU), failed to comply with its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure the health and safety of workers so far as reasonably practicable.
- Whether that failure exposed workers to a risk of death or serious injury, constituting a Category 2 offence under s 32 of the WHS Act.
- What penalty was appropriate having regard to the objective seriousness of the offence, mitigating factors, and the utilitarian value of an early guilty plea.
Decision
BKH pleaded guilty to a Category 2 offence under s 32 of the WHS Act. The maximum penalty at the relevant time was $1,782,579. The court assessed the objective seriousness of the offence as moderate to high, noting a significant risk of death or very serious injury, the foreseeable nature of the hazard, and the failure to develop any task-specific SWMS or exclusion zone for work over an open shaft.
Several mitigating factors were accepted in BKH's favour. These included its good compliance history, genuine remorse, co-operation with SafeWork NSW investigators, the absence of prior convictions, and meaningful post-incident remediation. The defendant also directly employs the injured foreman on modified duties following his recovery, which the court regarded as a significant expression of remorse.
The court determined that an appropriate fine before applying any discount was $200,000. BKH entered an early guilty plea, entitling it to a 25 percent utilitarian discount in accordance with the principles in R v Thomson; R v Houlton and s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court also took into account the defendant's liability for prosecutor's costs and its own legal costs when arriving at the monetary penalty.
Orders Made
- BKH Contractors Group Pty Ltd convicted of the offence under s 32 of the WHS Act.
- Fine of $150,000 imposed (being $200,000 reduced by 25% for the guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to SafeWork NSW as prosecutor.
- Defendant to pay the prosecutor's costs as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A PCBU's failure to develop a task-specific SWMS for high-risk work over an open void, and the absence of any fall protection or exclusion zone, supported a finding of moderate to high objective seriousness under s 32 of the WHS Act.
- Under the sentencing framework applied by the District Court, the defendant's post-incident remediation, direct employment and ongoing support of the injured worker, and co-operation with the regulator were all treated as meaningful mitigating factors.
- An early guilty plea to a WHS offence attracted a 25% utilitarian discount from the base penalty, consistent with the principles in R v Thomson; R v Houlton.
- When fixing a monetary penalty in WHS prosecutions, the sentencing court is entitled to take into account both the defendant's liability for prosecutor's costs and its own legal costs when arriving at the final figure.
- The absence of BKH representatives from a pre-incident planning meeting concerning hoist installation was noted as part of the factual context, illustrating how gaps in cross-contractor consultation can leave critical risks unidentified and unaddressed.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32, 46
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122
Cases
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465