The Attorney-General and Minister for Industrial Relations Michaelia Cash has imposed a nine-month sanction against New South Wales company Landmark Roofing Pty Ltd (ACN 108 495 923) 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 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.
Background Facts
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. He sustained serious injuries, from which he later died in hospital.
Both the apprentice roof plumber and his supervisor were wearing safety harnesses, however, neither of the harnesses were connected to an anchor point.
District Court decision
Landmark Roofing was the respondent to a prosecution brought by Worksafe New South Wales in the District Court of New South Wales.
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 is reasonably practicable, the health and safety of its workers while at work; and
· it 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.
The sentencing remarks of District Court Judge Russell SC state as follows:
Objective Seriousness of the Offence
My findings about the offender’s level of culpability are based upon the following:
(1) The risk of a fall from height was obvious and was known to Landmark. The risk created by working near old brittle polycarbonate material was well-known to Landmark.
(2) The risk was likely to occur. [name of apprentice] was an inexperienced apprentice who was working a considerable distance above the ground without being harnessed to the existing static line.
(3) The potential consequences of the risk were grave, including serious injury or death.
(4) There were available steps which could have eliminated or minimised the risk. There was an existing static line on the ridge of the roof. 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.
(5) There was no cost or inconvenience in the two workers being roped onto the static line.
(6) The death of [name of apprentice] was a direct consequence of Landmark’s breach of duty.
(7) 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.
I find that Landmark’s level of culpability is in the high end of the mid range.
Deterrence
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.
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.
Aggravating Factors
The injury, emotional harm, loss or damage caused by the offence was substantial. [The apprentice] died from the severe injuries that he sustained when he fell through the polycarbonate skylight sheeting.
[The apprentice] was a vulnerable, young, inexperienced worker. He was in the first year of his apprenticeship at the time of the incident.
Mitigating Factors
Landmark has no record of previous convictions.
Landmark is otherwise of good character. The steps which it took after the incident demonstrate this. Landmark has been in business for 16 years.
Landmark is unlikely to re-offend.
Landmark has good prospects of rehabilitation. It 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 gave assistance to law enforcement authorities. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.
Victim Impact Statements
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. In this regard the court offers its own sympathies to (the victim’s mother and father) and the wider family on the tragic loss of their son, a fine young man who was highly regarded by all who knew him.
A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of 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 prosecutor submits that the Victim Impact Statements of [the victim’s] mother and father should be taken into account in setting the appropriate level of penalty in this matter.
I determine that it is appropriate to take the statements into account.
Referral to the Minister by the ABCC Commissioner
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(1) 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] … and advise the ABCC of the steps proposed to be taken to rectify the breach.
The Code sets out 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 decided to impose an exclusion sanction of 9 months for the period 2 May 2022 to 1 February 2023.
ABCC Commissioner Stephen McBurney said:
“Given the considerable amount of Commonwealth Government funding available for building and infrastructure projects, recourse to an exclusion sanction is an important deterrent against companies breaching work health and safety laws.
“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.”
The nine-month sanction is the longest sanction handed to a company for a breach of the Code for the Tendering and Performance of Building Work 2016.
Litigation Timeline
On 15 May 2020, the District Court of NSW found the company:
· had a duty under section 19(1) of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of its workers while at work; and
· it had failed to comply with this duty, exposing [name of 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.
On 12 August 2020 Landmark Roofing filed an appeal with the Supreme Court of NSW Criminal Court of Appeal against its District Court conviction and penalty.
On 13 May 2021 in a unanimous decision, Landmark Roofing was found to have failed to establish any of its appeal grounds and the appeal was dismissed.
On 16 June 2021 Landmark Roofing filed an application for special leave to appeal the decision of the Supreme Court of NSW Criminal Court of Appeal in the High Court of Australia.
On 14 October 2021 the High Court of Australia dismissed Landmark Roofing’s application for special leave to appeal with costs awarded against the company.
Following the completion of Landmark Roofing’s avenues of legal appeal, the ABCC Commissioner referred the matter to the Minister for consideration of an exclusion sanction.