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Failed to consult and notify: $285K fine

SafeWork has cost a roof guttering company a total of $285,000 in fines.
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Failed to consult and notify: $285K fine

Failed to consult and notify: $285K fine

17 March 2021

By Gaby Grammeno

A failure to manage safety risks, co-operate and co-ordinate with other duty holders and report a notifiable incident to SafeWork has cost a roof guttering company a total of $285,000 in fines, after a worker installing guttering was seriously injured when he fell. The guttering company is the second PCBU to be convicted in relation to this accident.

The incident

In April 2017, a business supplying and installing roof guttering and associated products was engaged by the owner of a residential property in southern Sydney to replace the gutters at his property. The sole director of the guttering business took measurements to provide a quote for the work. He inspected the various sides of the property and saw that the area at the rear of the property would be difficult to access.

The arrangements for the supply and installation of guttering at the property were set out in two agreements, one for supply and the other for installation. The installation agreement named a licensed plumber employed by a plumbing company with which the guttering business had previously entered into a Lead Referral Agreement.

The job was then referred to the plumbing company, pursuant to the Referral Agreement.

However, the actual work was not carried out by anyone from the plumbing company. The director of the guttering business engaged a sole trader to replace the gutters at the property, under the licence of the plumber from the other company, who was to be paid a fee for the use of the licence.

The sole trader was not an ‘authorised person’ for the purposes of the state’s plumbing and drainage legislation – he did not hold an endorsed contractor licence or a supervisor certificate or a tradesperson certificate authorising him to do that work. Nor did he hold a licence as a builder, plumber or roof plumber. Despite his lack of appropriate qualifications, he had been given a number of jobs by the guttering business over the previous 12 years.

When he visited the property, the sole trader expressed concerns about the safety of the job to both the owner of the house and the guttering business. In particular, he was concerned that the north side/rear of the house – where the guttering was at its highest point – would be difficult to work on.

The sole trader reluctantly accepted the job lest he not receive any further work from the guttering business unless he did. He was not given any information or instruction on safe work methods or risk control measures when working at heights.

On 16 May he was working alone on the north side of the property while standing on a makeshift work platform consisting of a plank supported by an extension ladder with a ladder bracket and a trestle resting on two planks placed across a pool.

When he tried to lift a 7.5 metre length of steel shell into position, the trestle shifted and he fell onto the concrete edge of the pool below. He suffered serious injuries, including a fracture in his lower back requiring major surgery.

Contrary to notification requirements, the accident was not reported to SafeWork NSW, which only became aware of the incident some months later.

After an investigation by SafeWork NSW, the guttering business was charged with failing to manage the safety risk, failure to consult, co-operate and co-ordinate with other duty holders involved in the work, and failure to notify SafeWork of the incident. The plumbing company was also charged in relation to the same incident, and was prosecuted separately.

The case was heard in the District Court of NSW.

In Court

The court reviewed evidence clearly demonstrating that the manner in which the job was to be performed was an extremely dangerous operation, but that no risk assessment was undertaken, and the management of the guttering business had done absolutely nothing to ensure the safety of the worker.

The Judge said the foreseeability of the risk should have been blindingly clear. To his mind, he said, there was no possible way that anyone observing and co-ordinating these works could not have seen that this was an operation ‘that should have been expressly prohibited’.

The guttering business had appropriate scaffolding and should have cooperated with the plumbing company and the worker to arrange for it to be used.

The guttering business was convicted and fined a total of $285,000, after a 25% reduction for the early guilty plea.

The bottom line: WHS duties for working at heights must be complied with.

Read the judgment

SafeWork NSW v Easy Fall Guttering Pty Limited [2021] NSWDC 44 (5 March 2021)

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