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District Court 21 March 2025

SafeWork NSW v Galvatech Pty Ltd

[2025] NSWDC 73

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY MAXIMUM PENALTY SENTENCE

Citation: SafeWork NSW v Galvatech Pty Ltd [2025] NSWDC 73
Court: District Court of NSW
Date: 21 March 2025
Judge: Strathdee DCJ

Background

Galvatech Pty Ltd operated a galvanising facility in Padstow, NSW, employing approximately 46 workers. It engaged a labour hire company, BI Australia, to supply workers including forklift operators. On 11 February 2022, a labour hire forklift operator struck and ran over the leg of another labour hire worker, Mohammad Bilal Chaudhary, while reversing in a car park that was also being used as an improvised storage area. The forklift operator did not hold a high-risk work licence, and some of the forklift's warning lights were not functioning correctly at the time.

Mr Chaudhary suffered a broken leg and other injuries requiring surgery, orthotics, and extensive rehabilitation. He had been assessed as an inexperienced forklift operator and his primary role at the site was as a "checker," meaning he verified the contents of deliveries and marked associated tags.

SafeWork NSW prosecuted Galvatech as the host employer under the Work Health and Safety Act 2011 (NSW). Galvatech pleaded guilty to a Category 2 offence under section 32 of that Act: failing to comply with its primary health and safety duty under section 19(1), thereby exposing workers to a risk of death or serious injury.

  • Whether the agreed facts supported the section 32 offence and what level of objective seriousness to assign to the offending
  • What discount, if any, applied to the fine in light of the guilty plea
  • Whether mitigating or aggravating factors warranted adjustment of the penalty
  • Whether the defendant had demonstrated limited financial capacity sufficient to justify reducing the fine under section 6 of the Fines Act 1996 (NSW)
  • Whether the defendant should pay the prosecutor's costs

Decision

Strathdee DCJ found the offending to be of moderate objective seriousness, noting that the risk of being struck by a forklift was a well-known hazard in industrial workplaces and that the relevant guidance material, including the 2019 SafeWork NSW Code of Practice on managing plant risks, clearly identified it. Galvatech's failures were multiple: it had no traffic management plan for the car park area used for storage, no system to verify that forklift operators held the required high-risk work licence, and a risk assessment that did not address the risk of workers being struck. WHS policies existed but were not readily accessible to workers.

Her Honour acknowledged several mitigating factors, including the guilty plea, the absence of prior relevant convictions, Galvatech's cooperation with SafeWork NSW, and the remedial steps taken after the incident such as engaging a contractor to develop a traffic management plan, having the forklift serviced, and implementing a licence-verification system. The court accepted that Galvatech expressed genuine remorse. Responsibility was also shared with BI Australia, which failed to conduct adequate risk assessments or verify workers' competency before placement, though this did not reduce Galvatech's own culpability as host employer.

On financial capacity, Galvatech tendered profit and loss statements for the years ending June 2018 to June 2024, but the court found these insufficient to discharge the defendant's onus under section 6 of the Fines Act. The court declined to treat Galvatech as a small family company, noting it employed 46 workers and had recorded increasing profits in each year following the pandemic. Because no evidence was provided about net asset value or property holdings, the court declined to exercise its discretion to reduce the fine on capacity grounds.

The court set the appropriate fine at $300,000, reduced by 25 percent to reflect the utility of the guilty plea, producing a final fine of $225,000. The court also noted that an obligation to pay the prosecutor's costs is not punitive but compensatory, and took both that liability and Galvatech's own legal costs into account when fixing the monetary penalty.

Orders Made

  • Galvatech Pty Ltd convicted of the section 32 offence
  • Fine of $225,000 imposed (being $300,000 reduced by 25% for the guilty plea)
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine ($112,500) to be paid to the prosecutor
  • Defendant to pay the prosecutor's costs in the agreed sum of $40,000 plus GST

Key Takeaways

  • A host employer in a labour hire arrangement carries a primary duty of care under section 19(1) of the WHS Act for the safety of placed workers, and that duty extends to ensuring that anyone operating high-risk plant on its premises holds the required licence.
  • Profit and loss statements alone are insufficient to discharge the defendant's onus under section 6 of the Fines Act where no evidence of net asset value is provided; a sentencing court cannot assess financial capacity from a partial financial picture.
  • The District Court treated the absence of a traffic management plan, the failure to enforce licence-verification requirements, and an inadequate risk assessment as collectively significant in fixing objective seriousness, even where the offending fell at a moderate level.
  • Shared responsibility between a labour hire company and a host employer does not diminish each party's individual culpability; both owe concurrent duties under the WHS Act and the failure of one does not excuse the failure of the other.
  • Under section 122(2) of the Fines Act, 50% of a WHS fine is payable to the prosecutor, and the court may also order payment of agreed costs under section 257B of the Criminal Procedure Act, with both amounts factored into the overall penalty assessment.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32, 46, 274
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122

Key Cases
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464