Labour providers need to remember their WHS duties as third PCBU fined over powerlines fatality

Labour providers cannot rely on other companies to ensure the health and safety of their workers, a judge has stressed in fining a PCBU over two incidents (including a fatality) that occurred just weeks apart.

Across two judgments, Prime Metal Roofing Pty Ltd, which provided personnel to other roofing companies, was fined a total of nearly $500,000, after 25 per cent discounts for its pleas of guilty to category-2 breaches of the NSW Work Health and Safety Act 2011.

In both judgments, District Court Judge David Russell highlighted WHS provisions specifically stating that health and safety duties cannot be delegated.

“A PCBU cannot, in effect, shrug its shoulders and say ‘someone else will look after safety’,” the Judge said.

Prime Metal was fined $375,000 over the death, which occurred at a Riverwall Constructions Pty Ltd construction site in Moorebank in February 2019.

Riverwall had engaged Perry’s Roofing Pty Ltd to perform the roofing work, and Perry’s engaged Prime Metal to supply labourers for the task.

One of these workers was electrocuted while dismantling edge protection on the the roof, when a steel handrail he was holding touched energised powerlines.

His co-worker, who had been hired by Prime Metal just two days before the incident, was standing nearby and suffered severe burns to his legs.

The fatal incident occurred only two months after Prime Metal was incorporated. The Court found that although the PCBU’s two directors had worked as roofers, they were “young men with little or no commercial experience” and the business had no WHS system of its own.

It relied upon the safety systems of the other companies at the site. Those companies were also prosecuted for WHS contraventions.

Last year, Riverwall was fined $600,000 over the fatality, and Perry’s was fined $450,000

The second incident that Prime Metal was charged over happened at a different Moorebank site less than three weeks after the fatality.

Judge Russell heard two Prime Metal workers were injured when they fell four metres through an overloaded roof that collapsed. Two other workers avoided falling but suffered scrapes and bruises.

Prime Metal was convicted and fined $120,000 over the incident.

As at the fatality site, it had been engaged by Perry’s and over-relied on Perry’s systems, Judge Russell found.

“Prime Metal should have had its own safety systems and was obliged to take proactive steps to ensure the safety of its workers on the roof,” he said about both incidents.

“It failed to do so.”

In the first matter, Prime Metal did not have any safety procedures in place to cover employees working near powerlines. Instead, it relied on Perry’s safe work method statement and a visual assessment of the site, the Court heard.

A Riverwall manager asked workers to sign a “record of a toolbox talk” even though there was no toolbox talk or any discussions about hazards on site, it heard.

Workers raised concerns about the proximity of the powerlines but were simply told to avoid them, it found.

Judge Russell found Prime Metal should have known there was a significant likelihood of the risk occurring, and failed to take simple steps available at no cost to eliminate or minimise the risk.

As a result “young and relatively inexperienced workers were put at risk of death or serious injury”, he said.

SafeWork NSW v Prime Metal Roofing Pty Ltd [2023] NSWDC 15 (8 February 2023)

SafeWork NSW v Prime Metal Roofing Pty Ltd (No. 2) [2023] NSWDC 16 (8 February 2023)