Roofing company fined, sanctioned over apprentice death
A nine-month sanction has been imposed a nine-month sanction against New South Wales company Landmark Roofing Pty Ltd, after the company was found to have failed to comply with WHS laws, leading to the tragic death of an apprentice roof plumber. The sanction means that the company will be unable to tender for Commonwealth Government funded work for the duration of the sanction, which will run from 2 May 2022 to 1 February 2023. The nine-month sanction is reportedly the longest sanction handed to a company for a breach of the Code for the Tendering and Performance of Building Work 2016.
In early 2018, Landmark Roofing was engaged to replace fire-damaged roofing at a Mayfield West (NSW) recycling centre. On 8 March 2018, the first-year apprentice and his supervisor were on the roof of the building replacing a section of damaged polycarbonate skylight when the apprentice roof plumber fell around six metres through the skylight, sustaining injuries from which he later died in hospital. Both the apprentice and his supervisor were wearing safety harnesses; however, neither of the harnesses were connected to an anchor point.
SafeWork New South Wales prosecuted Landmark Roofing in the District Court; on 15 May 2020, the District Court found the company had a duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure, so far as was reasonably practicable, the health and safety of its workers while at work. The District Court ruled that the company had failed to comply with this duty, exposing the apprentice and his supervisor to a risk of death or serious injury contrary to section 32 of the WHS Act. A conviction was recorded and the company was ordered to pay a fine of $400,000 plus the prosecution’s costs.
District Court Judge Russell SC determined the offender’s culpability based on a range of factors, including the risk of a fall from height, which was obvious and known to Landmark. The risk created by working near old brittle polycarbonate material was well known to Landmark and was also likely to occur, as the apprentice was inexperienced and was working a considerable distance above the ground without being harnessed to the existing static line. The potential consequences of the risks were grave, including serious injury or death. Judge Russell also found that there were available steps which could have eliminated or minimised the risk; there was an existing static line on the ridge of the roof and both men on the roof were wearing harnesses. There were two ropes available to attach the harnesses to the static line — for unexplained reasons, one of those ropes was left in the utility at ground level. There was no cost or inconvenience in the two workers being roped onto the static line.
Judge Russell said the apprentice’s death was a direct consequence of Landmark’s breach of duty. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence. Judge Russell found that Landmark’s level of culpability was in the high end of the mid-range and determined that the penalty imposed in relation to this offence must provide for general deterrence. “General deterrence is a significant factor when safety obligations are breached. … This is particularly so when the offence involves a fall from height, which is one of the most common scenarios to come before this court. The penalty must reflect the need for specific deterrence. Landmark is still conducting a business in a high-risk industry. Its operations involve the removal of existing roofing material, replacement with metal sheet roofing and the installation of metal sheet roofing on new construction projects. Landmark continues to engage workers, including apprentices, for these projects,” Judge Russell said.
The injury, emotional harm, loss or damage caused by the offence was substantial. The apprentice died from the severe injuries he sustained when he fell through the polycarbonate skylight sheeting. The apprentice was a vulnerable, young, inexperienced worker, in the first year of his apprenticeship at the time of the incident.
Landmark Roofing has been in business for 16 years and has no record of previous convictions. Apart from this incident, the company is otherwise of good character, as demonstrated by the steps taken following the incident. The company is unlikely to reoffend and has good prospects of rehabilitation. Landmark has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred. Landmark also assisted law enforcement authorities and cooperated at all times with the prosecutor, providing all documents requested in a prompt fashion.
During court proceedings, the prosecutor submitted Victim Impact Statements from the victim’s mother and father about the tragic loss of their son, along with statements from the wider community about a fine young man who was highly regarded by all who knew him. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of a punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community.
The ABCC Commissioner found that Landmark’s breaches of the WHS Act constituted breaches of the Code for the Tendering and Performance of Building Work 2016 (the Code). Landmark Roofing was found to be in breach of subsection 9(3) and 17(2) of the Code, providing that a code-covered entity must comply with work health and safety laws, and notify the ABCC of a breach or suspected breach of the Code. The entity must also advise the ABCC of the steps proposed to be taken to rectify the breach. The Code details the Australian Government’s expected standards of conduct for building industry participants involved in Commonwealth-funded building work. If the ABCC Commissioner recommends a sanction for a breach of WHS Laws, the Minister must impose an exclusion sanction unless satisfied that it is not appropriate in the circumstances because of the nature of, or factors contributing to, the failure to comply. On 9 April 2022, the Minister imposed an exclusion sanction of nine months for the period 2 May 2022 to 1 February 2023.
ABCC Commissioner Stephen McBurney said recourse to an exclusion sanction is an important deterrent against companies breaching work health and safety laws, given the considerable amount of Commonwealth Government funding available for building and infrastructure projects.
“The tragic circumstances of this case have resulted in a significant exclusion sanction. There is no rectification capable of addressing the harm done in this case. The victim impact statements submitted to the District Court and summarised by His Honour speak to the devastating impact this workplace fatality has had on the victim’s family. The genuine statement of remorse from the sole director of Landmark was also acknowledged by the Court. The ABCC will continue to monitor breaches of WHS laws to ensure that Code sanctions can be referred to the Minister whenever it is appropriate to do so,” McBurney said.
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