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Heavy fines for PCBU and subcontractor after rigger’s death

A construction company and subcontractor have been convicted and fined $950K.
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Heavy fines for PCBU and subcontractor after rigger’s death

Heavy fines for PCBU and subcontractor after rigger’s death

16 April 2021

By Gaby Grammeno

A Sydney-based construction company and a subcontractor it engaged to work on the Barangaroo Ferry Hub have both been convicted and fined $950,000 between them, after a labour hire worker was killed on the job.

How the rigger died

The construction company was the principal contractor for the ferry terminal project. It had engaged approximately 120 subcontractors and sub-subcontractors - with a total workforce of 793 workers - to carry out works on the project. A subcontractor providing marine services and the installation of piling works from a barge recruited some of its workforce from a labour hire company, including a rigger.

On 1 March 2017, the rigger’s job involved dismantling and hooking ‘headstocks’ - three-tonne metal structures described as ‘inverted U shapes’ – to the crane hook on the barge, so the crane operator could move them. The headstocks were standing upright on the barge, but were not restrained.

During the afternoon, the wash from a passing ferry made the crane hook whip. The hook caught on one of the headstocks and knocked it over, crushing the rigger. He died from his injuries, leaving behind his pregnant wife and son.

Principal contractor and subcontractor had overlapping duties

The subcontractor was prosecuted by SafeWork NSW, charged with breaching sections 19 and 32 of the Work Health and Safety Act 2011. The subcontractor’s failure to comply with its health and safety duty was considered to be a Category 2 offence, as it exposed an individual to a risk of death or serious injury or illness.

The judge imposed a fine of $450,000 (being $600,000 reduced by 25% to reflect the guilty plea) plus the prosecutor’s costs.

The principal contractor – the construction company with overall responsibility for the project - also had a duty of care towards the subcontractor’s employees, including its labour hire workers, and it was subject to a separate prosecution.

The construction company presented evidence that its management system was certified to various international and national standards, including AS/NZS 4801:2001 Occupational health and safety management systems - Specification with guidance for use. Among other safety measures, it had prepared a hazard register recording 758 hazards, carried out 35 weekly consultative safety inspections, held 40 toolbox meetings and undertaken multiple reviews and revisions of 211 safe work method statements.

The company took the view that it would not have been reasonably practicable for it to check the safety of every task carried out by the workforce involved in the project. It argued that it had been justified in relying on the subcontractor to ensure work safety, as it specialised in this type of work.

The judge, however, noted that the company had a contractual obligation to conduct daily worksite inspections and so ought to have known about the risk of the headstocks falling over on the barge, as this was a foreseeable risk.

There were steps the company could have taken to make the work safer, including directing the subcontractor to provide a risk assessment, lay the headstocks down, secure the headstocks to the deck or prohibit workers from working on the barge while the headstocks were upright and/or unrestrained.

These steps would not have entailed a significant burden or cost. The construction company had the power to stop the work and compel the subcontractor to fix the problem.

After considering the aggravating and mitigating factors and hearing the victim impact statements, the judge convicted the company and imposed a fine of $500,000 plus the prosecutor’s costs.

The bottom line: Host employers - including principal contractors - have a duty of care for a subcontractor’s workers, and must make sure they’re aware of the risks faced by the subcontractor’s employees and casual workforce, including any labour hire workers who are employees of a labour hire company.

Read the judgment

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 3) [2021] NSWDC 105 (8 April 2021)

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