Laggner Constructions Pty Ltd has been convicted and fined $75,000 after a worker fell approximately 2.7 metres through a void, resulting in serious injuries.​
The Court heard that at the time of the incident, two pieces of loose plywood had been placed over a stairway void on the second level of a house under construction. The plywood sheets were not secured and were not strong enough to hold the weight of a person. The worker stepped onto the plywood sheets and fell through the void to the ground floor below.​
This incident could have been avoided by:​ • Installing adequate coverage or barricades for the void • Preventing workers from accessing the area • Communicating with workers about the presence of the void and its risks • Supervising workers
Falls from heights are the leading cause of traumatic fatalities in the NSW building and construction industry, and they are entirely preventable.​
Visit the SafeWork NSW website for a comprehensive collection of safety resources, guides and information designed to keep you and your workers safe.
A steel fabrication and installation company has been convicted and fined $40,000 after continuing to put workers at risk on a Geelong construction site, even after a worker was seriously injured.
NJ Steel Fabrications Pty Ltd was sentenced in the Geelong Magistrates’ Court on Thursday after pleading guilty to three charges of failing to provide and maintain a safe workplace and one charge of failing to provide information, instruction or training.
The company was also ordered to pay $8,375 in costs.
The court heard NJ Steel Fabrications had been engaged to provide structural steel works for an alfresco dining area at a retail premises in Geelong, including the installation of steel and plastic roof sheeting.
In January 2022, two workers were on top of the steel structure installing roof sheets when one of them fell through a gap approximately 3.85 metres to the ground below.
He sustained serious injuries including bleeding on the brain, a fractured pelvis, several fractured ribs, lacerations to his liver and kidney and bleeding associated with his adrenal gland.
WorkSafe inspectors attended and found there was no safe work method statement (SWMS) on site and one that had been prepared for the installation was not reviewed and revised to address the high risk construction work being performed. There were also no fall prevention measures being used and none of the workers on site were experienced or trained in working at heights.
It was reasonably practicable for NJ Steel Fabrications to install passive fall prevention devices such as guard railing and safety mesh, and to have provided training to workers on the hazards and risks of working at heights, the need for passive fall prevention devices and their implementation.
In February 2022, inspectors returned to the site and found the company’s director and another worker on the roof without internal fall prevention measures in place. Within an hour of WorkSafe leaving the site, the director was again observed working on the roof without adequate fall protection.
The court found NJ Steel Fabrication had failed to control the risk of a fall from height by affixing safety mesh to the entire roof area of the steel structure.
WorkSafe Executive Director Health and Safety Sam Jenkin said the company’s blatant disregard for the safety of workers was inexcusable.
“It is no secret that there is simply no safe way to work from heights without the appropriate training and fall prevention measures in place,” Mr Jenkin said.
“It beggars belief that this company still failed to install adequate controls to ensure the site was safe even after the risk had eventuated and a worker had suffered serious injuries.”
To prevent falls from height employers should implement the highest possible measures from the five levels in the hierarchy of controls:
Level 1 – Eliminate the risk by, where practicable, doing all or some of the work on the ground or from a solid construction.
Level 2 – Use a passive fall prevention device such as scaffolds, perimeter screens, guardrails, safety mesh or elevating work platforms.
Level 3 – Use a positioning system, such as a travel-restraint system, to ensure employees work within a safe area.
Level 4 – Use a fall arrest system, such as a harness, catch platform or safety nets, to limit the risk of injuries in the event of a fall.
Level 5 – Use a fixed or portable ladder, or implement administrative controls.
When undertaking High Risk Construction Work (HRCW), duty holders must:
Ensure HRCW is not performed unless a Safe Work Method Statement (SWMS) is prepared.
Ensure that once a SWMS has been developed, all HRCW work is undertaken in accordance with that SWMS.
Stop work immediately, or as soon as it is safe to do so, once they become aware a SWMS is not being followed.
Review the SWMS whenever there is a change in the work being undertaken or if there is an indication that control measures are not adequate.
Laggner Constructions Pty Ltd has been convicted and fined $75,000 after a worker fell approximately 2.7 metres through a void, resulting in serious injuries.​
The Court heard that at the time of the incident, two pieces of loose plywood had been placed over a stairway void on the second level of a house under construction. The plywood sheets were not secured and were not strong enough to hold the weight of a person. The worker stepped onto the plywood sheets and fell through the void to the ground floor below.​
This incident could have been avoided by:​ • Installing adequate coverage or barricades for the void • Preventing workers from accessing the area • Communicating with workers about the presence of the void and its risks • Supervising workers
Falls from heights are the leading cause of traumatic fatalities in the NSW building and construction industry, and they are entirely preventable.​
On 4 June 2024, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (WHS Bill) was introduced into the NSW Legislative Assembly to amend the Work Health and Safety Act 2011 (NSW) by creating an offence of industrial manslaughter. If passed, the WHS Bill will set some of the highest WHS penalties in Australia, with individuals found guilty of industrial manslaughter facing up to 25 years in prison, while corporations could be fined up to $20 million.
The proposed offence
NSW is one of the last mainland states to introduce a dedicated industrial manslaughter offence, aligning it with other states that have already enacted similar laws. Under the WHS Bill, the proposed offence will be committed where a person:
has a health and safety duty; and
is a persons or an Officer of a person, conducting a business or undertaking (PCBU); and
engages in certain conduct, by an act or omission, that caused the death of a worker or another individual, to whom the person’s health and safety duty is owed; and
engages in conduct with gross negligence.
As made clear in the second reading of the WHS Bill, the proposed offence will cover those individuals whose behaviour or decisions have the power to influence the activities and culture of a workplace (i.e. officers of a PCBU).
Interestingly, the WHS Bill attempts to provide guidance on when a body corporate may be considered grossly negligent. According to the WHS Bill, a PCBU may be grossly negligent if there are inadequate corporate management, control or supervision of the conduct (act or omission) of one or more authorised persons (defined in the existing WHS Act as an officer, employee or agent acting within their actual or apparent authority), or a failure to provide adequate systems for conveying relevant information to relevant persons within the body corporate. This formulation is unhelpful and creates more questions than answers. For example, conduct may be readily established where multiple rogue individuals do not adhere to systems implemented or promoted by the business, exposing the PCBU and other officers. The Bill does not define what constitutes inadequate corporate management, control and supervision. Additionally, there is no clear standard for what makes a system for conveying information inadequate or who the ‘relevant persons’ are within the body corporate.
Other notable sections of the WHS Bill
No time limitation period for prosecutions: There is no limitation period for prosecuting industrial manslaughter offences. This means that legal proceedings can be initiated at any time following the offence.
Alternative verdicts: If a prosecution for industrial manslaughter is initiated and the court finds the individual or PCBU not guilty of industrial manslaughter, the court may still convict for a Category 1 offence, even if the time limitation period for a Category 1 offence has lapsed. This alternative charge is consistent with industrial manslaughter provisions across Australia. However, unlike other industrial manslaughter laws, NSW’s proposed provisions lack the requirement to afford the defendant procedural fairness concerning the alternative Category 1 offence.
Exemption for volunteers: The industrial manslaughter offence is not intended to apply to volunteers.
Enforceable undertakings: Enforceable undertakings cannot be accepted by the regulator for contravention of an alleged industrial manslaughter offence. This is consistent with the current approach taken to a Category 1 offences.
Establishment of special unit: In addition to the WHS Bill, the NSW Government proposes to establish a special unit within the Office of the Director of Public Prosecutions that will be responsible for prosecuting industrial manslaughter cases.
Increased penalties
Under the new bill, individuals found guilty of industrial manslaughter could face up to 25 years in prison, while corporations could be fined up to $20 million. These penalties are significantly higher than the current maximums under the WHS Act, which are $399,479.85 and/or five years’ imprisonment for individuals, and $3,992,492.70 for PCBUs. The highest court-imposed WHS fine to date stands at $2,025,000. The new industrial manslaughter laws represent a dramatic increase in the maximum penalties.[1]
Below is a comparison of industrial manslaughter penalties across the Australian jurisdictions:[2]
Jurisdiction
Industrial manslaughter law
Maximum penalties
Commonwealth
In force from 1 July 2024
Individual: 25 years’ imprisonment Body corporate: $18,000,000
ACT
Law in force
Individual: 20 years’ imprisonment Body corporate: $16,500,000
SA
In force from 1 July 2024
Individual: 20 years imprisonment Body corporate: $18,000,000
QLD
Law in force
Individual: 20 years’ imprisonment Body corporate: $15,480,000
WA
Law in force
Individual: 20 years imprisonment and a fine of $5,000,000 Body corporate: $10,000,000
VIC
Law in force
Individual: 25 years’ imprisonment Body corporate: $19,231,000
TAS
No law in force
N/A
NT
Law in force
Individual: imprisonment for life Body corporate: $11,440,000
Implications for Employers
While the new industrial manslaughter laws does not change the obligations of individuals and PCBUs duties under the WHS Act, the significant penalties that will apply following conduct that causes the death of a worker heightens the importance of taking a proactive approach to meeting those duties.
The duties under the current WHS Act already require individuals and PCBUs to ensure the health and safety of workers and others affected by their operations, as far as is reasonably practicable. These duties remain unchanged with the introduction of the industrial manslaughter laws. These laws only introduce more severe penalties for breaches that result in fatalities, but also create uncertainty in relation to what exact conduct will constitute gross negligence by way of inadequate corporate management, control or supervision of the conduct or authorised person(s) or the failure to provide adequate systems for conveying relevant information to relevant persons. The WHS Bill is yet to be debated in Parliament, and changes may occur during this process. Kingston Reid will provide updates as the changes develop.
To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing businessdevelopment@kingstonreid.com.
The views expressed in this article are general in nature only and do not constitute legal advice.
Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.
[1] As at June 2024. Penalties will increase in July 2024.
An alarming rise in serious injuries caused by falls from heights has prompted SafeWork SA to launch an awareness campaign to keep workers safe.
The state’s workplace health and safety regulator today revealed that 2023 saw a 36 per cent increase in the number of serious workplace injuries caused by falling from heights across all industries compared to the previous year.
The falls prevention campaign coincides with the release of Safework SA’s 2023 Health and Safety Snapshot of the construction industry.
Of the 105 serious injuries sustained in workplace falls in 2023, more than half involved construction workers, five times more than any other industry.
There were 58 serious injuries in construction, including 36 in the residential sector, and 10 involving apprentices.
SafeWork SA identified 399 non-compliances across all industries in 2023, with construction accounting for 89 per cent.
The 2023 snapshot shows:
residential construction sector had the most non-compliances with 292 compared to 58 in commercial and six in civil.
misuse of ladders was the biggest contributor to serious injuries from falls with 35 incidents.
carpentry and working on a roof had a high number of serious injuries caused by falls with 13 and 14 respectively.
83 per cent of serious injuries were due to falls below three metres.
20 per cent of falls resulted in head injuries.
SafeWork SA inspectors will visit construction sites and continue to monitor compliance with managing the risk of falls.
They will also remind workers, businesses, contractors and managers about their legal obligations to identify and manage hazards.
To support this, SafeWork SA is providing access to a new interactive tool created by Safe Work Australia to guide businesses and workers through the process of formally documenting risks and controls for each project, including working at height.
Produced in consultation with construction unions and associations, a sample Safe Work Method Statement (SWMS) Guidance Tool based on first fix carpentry is available on the SafeWork SA website
The campaign will also target the six construction activities which the audit identified as having the most non-compliances with safety tips published on SafeWork SA’s social media channels, including Facebook, Instagram and LinkedIn.
Outside of construction, falls accounted for 11 serious injuries in manufacturing, eight in transport, postal and warehousing, eight in agriculture, forestry and fishing four in mining with the remainder attributed to other sectors including health care, arts and recreation and retail.
The SafeWork SA website contains extensive safety resources specific to construction work which it regularly promotes to the industry.
Quotes attributable to SafeWork SA Executive Director Glenn Farrell:
SafeWork SA provides a comprehensive range of tools, resources and support to the construction industry so it can keep its workers safe. We will be carefully monitoring the safety performance of the residential sector in particular and looking for significant improvements. I congratulate the businesses that are doing the right thing and encourage them to maintain high standards.
Keks Projects Pty Ltd (Keks) has been fined $180,000 after a worker fell 4.5 metres down an excavation pit, sustaining a fractured right ankle and several fractures to his pelvis.
The Court heard that at the time of the incident, the temporary edge protection along the excavation pit the worker was leaning against gave way, leading to the fall. The risk of a fall was known to and foreseen by Keks, and there were simple and effective steps available to eliminate or minimise the risk.
Keks has the right to appeal the sentence.
Falls from heights in the construction industry are depressingly common, often with devastating and long-lasting impact on the workers.
We are urging business to be on guard, see the risks, and implement effective steps so that all workers can go home safely at the end of their working day, every day.
As you may be aware, the Standards Australia SF015 Committee has been undertaking a review of the 1891.4 standard.
We are pleased to let you know that the draft is now open for commenting on Standards Australia public comments system.
Standard: DR AS/NZS 1891.4:2024 Personal equipment for working at height, Part 4: Selection, use and maintenance Committee: SF-015 Industrial Height Safety Equipment
Comment Start Date: 08/05/2024 Comment End Date: 10/07/2024
Fatigue is more than feeling tired and drowsy – fatigue is a state of mental and/or physical exhaustion that reduces the ability to work safely and effectively. It can happen when someone is overworked, not sleeping right or has had a disruption to their internal body clock.
If you’re a person conducting a business or undertaking, you have a work health and safety (WHS) duty to prevent fatigue. Â
You must eliminate or minimise the risk of fatigue, so far as is reasonably practicable. You must consult with workers, and health and safety representatives if you have them, about health and safety issues that may directly affect them. You must also consult, cooperate and coordinate activities with any other duty holders who you share a duty with.Â
Workers also have a duty to take reasonable care for their own safety and health and make sure their acts or omissions don’t adversely affect the health or safety of others. Your PCBU has a duty to keep you and your workplace safe from risks associated with fatigue. You also have a duty to take reasonable care of your safety and that of others in the workplace including ensuring your acts and omissions don’t adversely affect others health and safety. Comply with any reasonable instructions, policies and procedure given by your PCBU at the workplace.
People in the construction industry can often work long hours, doing physically demanding work, which may lead to mental and/or physical exhaustion that reduces the ability to perform work safely and effectively.
It reduces alertness which may lead to errors and can increase the risk of an incidents or injuries for the fatigued worker and others. Particularly when a worker is:
Operating a fixed or mobile plant
Working at heights
Working with flammable or explosive substances
Doing hazardous work e.g. electrical work
Managing the risks of fatigue
As a PCBU, you should manage the risks of fatigue in the workplace by:
Controlling the risks by eliminating the risks to health and safety so far as is reasonably practicable; and if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable; and
Reviewing hazards and revising control measures, where necessary, to ensure they’re working as planned.
Identifying hazards and assessing risks
Identifying the hazards that may cause fatigue in the workplace is an important first step. Ways to identify these hazards include:
Consulting workers, managers, supervisors and health and safety representatives – for example, about the impact of workloads. work schedules, work-related travel and work outside normal hours.Â
Examining work practices, systems of work and worker records – for example, sign-in and sign-out sheets; andÂ
Reviewing data – for example, workplace incident or human resource data.Â
Once you have identified the hazards you can then assess the risks. This step may not be necessary if you are dealing with a known risk, with known controls.
Controlling the risks
Examples of control measures to manage the risks of fatigue include:
Work scheduling – for example, schedule safety critical work outside the low body clock periods between 2am and 6am, and 2pm and 4pm.Â
Managing job demands – for example, structure shifts so work demands are highest in the middle of the shift and decrease towards the end.Â
Change environmental conditions – for example, eliminate working in heat.Â
Consult with workers about managing non-work related causes; andÂ
Implement a workplace fatigue policy.Â
Some control measures are more effective than others and you may need to implement a combination of controls to manage the risks of fatigue so far as is reasonably practicable.
Reviewing hazards and control measures
Once control measures are implemented, they should be monitored and reviewed to make sure they remain effective. Consider implementing trial periods for any new work schedules and encouraging workers to provide feedback on their effectiveness.
An electrical company that repeatedly put workers at risk when working at height has been convicted and fined $40,000.
New Switch Electrical Pty Ltd was sentenced in the Geelong Magistrates’ Court on Monday 22 April after being found guilty of three charges of failing to provide or maintain a safe workplace.
The company was also ordered to pay $3959 in costs.
In July 2022, WorkSafe inspectors observed two New Switch Electrical apprentices installing solar panels on the roof of a Wandana Heights home with no falls protection in place.
The court heard the inspectors were told the sole company director was aware there was no falls protection on the 2.7-metre-high roof and had left the workers on site unsupervised, telling them to “keep doing what (they were) doing)”.
A safe work method statement (SWMS) had also not been prepared for the work.
WorkSafe had previously taken compliance action against the company in June 2021, after a New Switch Electrical apprentice was observed installing solar panels on a house with no falls protection or SWMS in place.
The court heard it was reasonably practicable for the company to provide safe systems of work to ensure fall protection measures, such as guard rails, were installed before any work was carried out; to provide adequate supervision to workers to ensure they did not commence work without fall protection measures in place; and to ensure a SWMS was prepared prior to high risk construction work commencing.
WorkSafe Executive Director of Health and Safety Narelle Beer said failing to manage the risks of working at height was a tragedy waiting to happen.
“It’s incredibly disappointing to see the very well-known strategies to reduce the risk of falls continue to be ignored, and it’s even more frustrating that this employer had previously acknowledged they understood their safety obligations,” Dr Beer said.
“The workers involved were young apprentices with their whole working lives ahead of them and it is awful to think their futures were knowingly put at risk because of this employer’s failure.”
To prevent falls from height employers should:
Eliminate the risk by, where practicable, doing all or some of the work on the ground or from a solid construction.
Use a passive fall prevention device such as scaffolds, perimeter screens, guardrails, safety mesh or elevating work platforms.
Use a positioning system, such as a travel-restraint system, to ensure employees work within a safe area.
Use a fall arrest system, such as a harness, catch platform or safety nets, to limit the risk of injuries in the event of a fall.
Use a fixed or portable ladder, or implement administrative controls.
When undertaking High Risk Construction Work (HRCW), duty holders must:
Ensure HRCW is not performed unless a Safe Work Method Statement (SWMS) is prepared. Ensure that once a SWMS has been developed, all HRCW work is undertaken in accordance with that SWMS.
Stop work immediately, or as soon as it is safe to do so, once they become aware a SWMS is not being followed.
Review the SWMS whenever there is a change in the work being undertaken or if there is an indication that control measures are not adequate.
A copy of the SWMS must be retained for the duration of any HRCW.
Packed full of exhibits, live demos, seminars, workshops, networking – and attended by thousands of health and safety professionals – this all-encompassing event provides the knowledge, tools, resources and connections you need to achieve world-class safety.
