$1 Million WHS Prosecution Sets NSW Record High
In early May 2017 the NSW District Court fined a company $1 million for breaches of section 19 of the NSW WHS Act. This is the highest NSW WHS fine since the Model WHS laws came in in 2012.
The Incident
The Primary contractor (PCBU) was contracted to perform work for Sydney Trains. They further engaged a subcontractor to install windows in a block of apartments that were under construction. The apartments were located very close to Sydney Trains’ powerlines that carried 33,000 volts. The PCBU had applied to Sydney Trains to isolate the power lines but Sydney Trains approval had not been given by the time the work was scheduled to be done. They got in the subcontractor to do the job urgently because the scaffolding was due to be removed the following weekend.
A window angle the subcontractor was holding came into contact with the powerlines. There was an explosion and the subcontractor was thrown backwards and appeared to be on fire. He suffered burns to 30% of his body. This incident happened in June 2014 and he is still unable to return to work as of this writing (2017.)
Prior to this incident a SafeWork NSW Inspector had issued 3 Prohibition Notices and 2 Improvement Notices on the Primary contractor about matters relating to work being done close to the power lines.
Why did the Judge impose a record high fine of $1 million?
1. It was revealed that the company director knew about the risks but failed to heed the content of the Prohibition notices and Improvement notices issued by SafeWork NSW, nor the necessary information in the Code of Practice Working Near Overhead Power Lines or the NSW Transport System Guide Working around Electrical Equipment.
2. The subcontractor had not previously been involved in high-density development work or worked in the vicinity of powerlines.
3. The director of the PCBU that employed the subcontractor:
did not tell the subcontractor that a SafeWork NSW inspector had issued Prohibition and Improvement Notices about the construction work and the power lines
did not give the subcontractor a site induction or have him attend tool box meetings
did not tell him that there were live high voltage power lines close to the building
did not put barrier tape up or put signage in place to warn the subcontractor about the live power lines
The Judge concluded that the PCBU had not provided the subcontractor with a safe system of work, had shown a blatant disregard for safety obligations, and had a high level of moral culpability for the incident.
For more information, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066