The District Court of New South Wales has confirmed the high bar that is required for directors and other company officers to meet under the Work Health and Safety Act 2011 (NSW) (WHS Act).

In the recent case of Safe Work NSW v Christopher Michael Butler; Safe Work NSW v Edgesafe Pty Ltd [2018] NSWDC 60 Judge Scotting imposed a fine on a director who pleaded guilty to failing to comply with his duty under section 27(1) of the WHS Act, in circumstances where that director was on annual leave at the time the incident that led to the charge occurred.

Facts

The company had been engaged to install a temporary guard rail fencing along the edges of a roof of a building in western Sydney. That work was to be carried out in accordance with a safe work method statement (SWMS) which was prepared by the director. The director attended the site prior to the date of the work and, in conjunction with another worker, decided upon the best way to perform the work. It was decided that the company would fix the guard rail directly to the fascia of the building using screws, and directed the work to be carried out in this way. The director had previously trained workers of the company in this 'fascia fix' method.

The director then went on annual leave, and other workers carried out the work.

Two days after the temporary roof guard rail had been installed, a roofer placed his hand on the guard rail, and the guard rail separated from the edge of the roof causing the worker to fall approximately 5 meters. The roofer suffered serious injuries to his neck, back, wrist, bowel and spleen.

In the sentencing decision, Judge Scotting pointed out to the fact that the temporary guard rail as installed was not compliant with the relevant Australian standard, AS/NZ 4994:2009 Temporary Edge Protection (Standard). Among other things, the Standard requires for guard rails to be able to sustain the force of a person falling against it, and provides guard rails to be tested before they are handed over for work to commence on the roof.

The director had previously trained the company's workers in the requirements of the Standard, including the need to test guard rails and provide handover certificates certifying that this had occurred. That said, the requirements of the Standard were not met on the day of the incident, and a handover certificate was not provided to the client.

Judge Scotting noted the appropriate starting point for a fine for the director was $30,000, however the fine was considerably reduced to $5,500, given the director's limited capacity to pay the fine.

The company also had financial difficulties, and the $250,000 fine was reduced to $75,000.

Implications for directors

Directors need to do more than just train their workers in appropriate work methods and the applicable Australian Standards that apply to their work – directors must ensure that the work is carried out in adherence to those standards, and directors can be held responsible for deviations from those standards even when they are away from the business.

The case confirms that it is important for directors to have systems in place in their organisations to ensure work is carried out in the appropriate manner. Implementing regular audits, spot checks and systems reviews can assist directors to meet their due diligence obligations.