Persons conducting a business or undertaking (PCBUs) have a positive obligation to ensure, so far as reasonably practicable, the health and safety of workers and others. This primary duty of care requires PCBUs to take steps to eliminate risks or, if this is not reasonably practicable, to minimise risks at the workplace.
It is critical that PCBUs do not embody a “set and forget” mentality when it comes to the risk management process and the risk control measures implemented in the workplace, especially when faced with risks and hazards that continue to evolve.
In the recent decision of Safe Work NSW v Kayrouz Constructions Pty Limited (No.2) [2021] NSWDC 38, the District Court of NSW (the District Court) was critical of a PCBU for taking a “set and forget” approach in failing tore-assess risks after conditions had changed at the worksite.
Kayrouz Constructions Pty Ltd (Kayrouz) conducted a business or undertaking and was the primary contractor engaged in the overall construction and control of a five-storey building located in New South Wales.
In a WHS Management Plan, Kayrouz had identified high voltage overhead powerlines which were located parallel to the Gray Street facing side of the building to be a hazard. Kayrouz arranged for scaffolding to be erected in December 2015 and removed in September 2016 when the powerlines were de-energised by Ausgrid.
Kayrouz sub-contracted workers to provide plumbing services for the project. In or about November 2016, three of the sub-contractors were installing cold water pipes on the fourth storey of the Gray Street facing side of the building.
At this stage the scaffolding had been removed, so the workers elected to manually pass the six-metre-long copper pipes up the balconies and into the building. In doing so, one of the pipes made contact with a 11,000-volt powerline and caused a large explosion.
One of the workers were thrown back into the building as a result of the explosion and sustained electrical shock, arc flash injuries to his eyes and severe burns to his left hand.
SafeWork NSW subsequently brought proceedings against Kayrouz for breaching sections 19 and 32 of the Work Health and Safety Act 2011 (NSW).
Kayrouz pleaded guilty to the offence and agreed with SafeWork NSW that it had failed to comply with its WHS duty to take reasonably practicable steps to:
However,Kayrouz disputed that it had not taken reasonably practicable steps to:
Kayrouz maintained that its WHS Management Plan addressed the hazards associated withworking near high voltage overhead powerlines and that in identifying this risk,they arranged for the powerlines to be de-energised for the erection and removal of the scaffolding.
Kayrouz submitted that at the time of the incident, they believed all works had been completed on the Gray Street side of the building and therefore the scaffolding had been removed accordingly.
However,the District Court disagreed with Kayrouz, stating that an additional risk assessment was required because there were still risks associated with the overhead powerlines being in close proximity to the Gray Street side of the building, irrespective of whether the scaffolding had been removed.
According to the District Court, despite the risk being much less at the time the scaffolding was removed, there was still a risk associated with working near powerlines which should have been properly assessed.
In accepting evidence that this was not the first occasion where workers had transported pipes through the balconies of the building, the District Court did not accept that Kayrouz adequately imposed a safe work procedure for work involving the delivery and transportation of the copper pipes. The District Court stated at [199] that “while the safe working procedure in these respects was developed and implemented, it does not appear to have been enforced”.
The District Court was also satisfied based on the evidence that Kayrouz had failed to provide information, instruction or training about the risks associated with working in close proximity to the overhead power lines.
Additionally,the District Court accepted that it was reasonably practicable for Kayrouz to place a prohibition on workers from carrying material that could come into contact with overhead powerlines and that Kayrouz did not do so.
In having regard to the above, the District Court determined the culpability of Kayrouz to be in the low range. Accordingly, the District Court ordered Krayouz to pay a fine of $60,000 (inclusive of a 25% deduction for an early guilty plea).
Lesson for employers
It is critical that PCBUs are aware of their positive obligation to ensure the health and safety of workers and others in the workplace. This health and safety duty means that PCBUs must continually assess risks in the workplace and take steps to eliminate them or, if this is not reasonably practicable, to minimise the risk as far as reasonably practicable. In short, PCBUs must be alive to changing conditions and circumstances and ensure that risks are managed.
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