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Record $1-million WHS fine for blatant safety breach

Safety breach

IN A LANDMARK decision, New South Wales construction company WGA Pty Ltd has been fined a record $1-million for Workplace Health & Safety (WHS) offences after a sub-contractor was electrocuted while working near live high-voltage powerlines.

NSW District Court Judge Andrew Scotting issued the company with the record fine from a potential maximum $1.5 million, plus over $50,000 in costs, after finding the company breached the state’s WHS Act, leading to the man’s serious injuries.

The sub-contractor had been exposed to a “risk of death or sudden injury” and the employer’s moral culpability for the offence was high because there had been a “blatant disregard of its safety obligations”, Judge Scotting found.

“The gravity of the risk was significant and included a risk of death. The potential consequences were catastrophic in that an electric shock was likely to cause death or at the very least serious injury because the upper power lines were carrying 33Kv.”

The residential construction was occurring on Sydney’s King Georges Road in Sydney and the sub-contractor was installing apartment windows using scaffolding which was close to powerlines “without the installation of non-conductive hoarding”.

There was also no “exclusion zone marked to prevent a person coming within 3m of the lower power lines”.

In March 2014, the Principal Contractor told the WHS Inspector “he was not a builder, that this was first construction project he had undertaken and that he had a business to run so he was not on site all of the time to supervise the work”.

The Inspector told the Principal Contractor: “All it would take is for a worker to pick up materials, such as scaffolding or those lengths of steel, turn around and they could easily come into contact with the power lines. It is unrealistic to expect busy construction workers to simply remember the power lines and stay away from them. That’s why you need to have physical and visual barriers, particularly if you are not always on site when work is taking place. Tiger tails are not a control measure and do not provide protection against electric shock or electrocution.”

The Inspector raised concerns about the need for a 3m clearance for persons and non-conductive materials, and 4m clearance for scaffolding, to which the Principal Contractor replied, “I don’t really see it as such a problem” and “why would someone reach out and touch it”.

The Judge heard the Inspector issued three prohibition notices and heard evidence scaffolding was erected with a clearance of 900mm and 600mm, when it should have been 3m.

The Principal Contractor attempted to isolate the power but claimed it wasn’t approved.

In June 2014, the angle the subcontractor was holding while standing on scaffolding came in contact with overhead powerlines.

A witness across the road heard an explosion and saw the worker being thrown backwards on the scaffolding.

“The worker appeared to be on fire and his head was hanging over the fourth storey of the worksite,” the witness stated.

The worker received burns to 30 percent of his body, was hospitalised for three months, had extensive skin grafts and has not been able to return to work.

Judge Scotting concluded this was from suffering an electric shock when his angle contacted the 33Kv powerline adjacent to the window ledge of the units.

WGA pleaded not guilty to the WHS charges but the Judge issued the conviction.

“The offender took no precautions to avoid a known risk,” he said.

“The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements.”

Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92 (5 May 2017)

Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 91 (10 April 2017)

AREEA’s workplace relations specialists can ensure your site practices and procedures are safe and meet all your state and federal WHS obligations. For safety audits and advice, contact your local AREEA office.

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