Two companies have been fined $8,000 each in a pure risk prosecution for failing to provide guard railing and stair void protection at a residential construction project, exposing employees and contractors to the risk of a fall from height.
Initial Homes Victoria Pty Ltd is licensed building company and the principal contractor for a project involving the construction of three residential units in Kilsyth. LBR Frames Pty Ltd is a construction company, engaged by Initial Homes to complete framing works for the Kilsyth project.
Initial Homes had management and control of the workplace and was responsible for installing perimeter edge protection and stair void protection at the workplace.
In September 2023 a WorkSafe inspector visited the Kilsyth workplace and observed the LBR Frames’ director, an apprentice carpenter and a sub-contracted carpenter on the first floor of units one and two, at a height of more than three metres. No guard railing or stair void protection was in place.
The inspector issued two improvement notices to Initial Homes in respect of fall protection, and an improvement notice to LBR Frames in relation to its failure to produce a Safe Work Method Statement (SWMS) for the high-risk construction work.
WorkSafe re-attended the workplace a week later and observed that proprietary perimeter handrails and a stair void protection system with a compliant ladder had been installed. LBR Frames produced a site-specific SWMS signed by the relevant workers.
Initial Homes had previously been put on notice about the risk of falls from height, when in 2020 WorkSafe attended a workplace under Initial Homes’ control in Warranwood where six double storey domestic dwellings were under construction. An improvement notice was issued after three workers were observed working on the first floors of two units, close to live edges.
LBR Frames had twice previously been put on notice about the risks of falls from height. In 2020 WorkSafe attended a workplace in Officer where LBR Frames was subcontracted to complete carpentry works. Two improvement notices were issued in relation to the risk of falls from height.
In 2023 WorkSafe attended a workplace in Clyde North where the LBR Frames director was the Site Supervisor. Employees were observed installing roof trusses on a single storey house while standing on the external top plates where there was an uncontrolled risk of a fall of more than two metres. No notices were issued on that occasion.
Initial Homes pleaded guilty to a single charge of breaching section 26(1) of the Occupational Health and Safety Act 2004 for failing to reduce the risk associated with a fall from a height greater than two metres by installing a passive fall prevention device, such as perimeter guard railing.
LBR Frames pleaded guilty to a single charge of breaching sections 21(1) & (2)(a) of the Occupational Health and Safety Act 2004 for failing to provide or maintain a system of work that was, so far as was reasonably practicable, safe and without risks to health, namely, a system of work that required a passive fall prevention device to be in place before commencing works from heights of more than two metres.
Initial Homes’ culpability was high as a company run by an experienced director who had previously been warned by WorkSafe about the danger of falls from heights. It was the Court’s finding that such an oversight would have been obvious to anyone working in the industry. Likewise, LBR Frames specialises in domestic building projects and knew about the risk of falls from height.
It is encouraging to see more pure risk prosecutions coming through the courts, indicating that WorkSafe is proactively addressing employer breaches of the OHS Act before employees or other persons are injured.
A ‘pure risk’ prosecution is initiated for a breach of a general duty, in circumstances that have not already resulted in an incident or injury. The general duties imposed under the OHS Act and Regulations to not require the occurrence of death, injury or illness as an element of the offence. In Australian WHS law, and some regulations, breach of the legislated duties that exposes workers and other people to an uncontrolled risk is enough to prompt prosecution.
From a regulatory policy perspective ‘pure risk’ prosecutions are a vital part of an enforcement strategy with an escalating hierarchy of sanctions. They are consistent with the goal of primary prevention and a reminder to employers of their duty to proactively eliminate risk, as far as reasonably practicable, before someone is harmed.
We don’t often see ‘pure risk’ prosecutions, not least because the only way WorkSafe is likely to find out about such OHS Act or Regulation breaches is if -
- the business self-reports.
- a worker or someone else makes a complaint to WorkSafe.
- the workers realise the level of risk and cease work, thus leading to an inspector being notified through the issue resolution process.
- a coincidental WorkSafe visit where the hazard is observed by or reported to the inspector on site, as occurred in these cases against Initial Homes and LBR Frames.
Given the potential for serious injury or even death that is presented by working at heights without fall protection, and the fact that each company was aware of their duty to ensure that employees are not exposed to such risks, the $8,000 fines imposed on Initial Homes and LBR Frames seem a very small price to pay.
Read more: Prosecution Result Summaries and Enforceable Undertakings | WorkSafe Victoria