District Court New South Wales Medium Neutral Citation: SafeWork NSW v HLH NSW Pty Ltd [2023] NSWDC 501 Hearing dates: 14 November 2023 Date of orders: 17 November 2023 Decision date: 17 November 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 HLH NSW Pty Ltd is convicted. 2 I impose a fine of $82,500. 3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Category: Sentence Parties: SafeWork NSW (Prosecutor) HLH NSW Pty Ltd (Defendant) Representation: Counsel: M Moir (Prosecutor) M Cahill (Defendant) Solicitors: Office of the Director of Public Prosecutions (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): 2023/39323 Publication restriction: None JUDGMENT Introduction 1. HLH NSW Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 33 of the Work Health and Safety Act 2011 (NSW) (the Act), in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act. 2. The maximum penalty for the offence is a fine of $588,540. Facts 1. The offender conducted a business that supplies temporary labourers and tradespeople in the construction industry. The offender had two directors, Alisha Pritchard and Sorcha Hunter. 2. In January 2021, the offender was engaged by Harbour City Roofing to provide general labourers to assist with works being carried out at the Hurstville Aquatic Leisure Centre (the site). The site comprised three main areas, namely the aquatic centre, gymnasium and stadium. Roofing works were being conducted at the Aquatic Centre. 3. On 27 January 2021, Mr Spillane commenced employment with the offender as a labour hire worker. On that same day, he was assigned to work with Harbour City Roofing at the site. Mr Spillane had worked in the construction industry as a labourer for some time. 4. The offender had conducted a reference check prior to making an offer of employment to Mr Spillane, to ensure his suitability to perform work as a general labourer. The offender did not provide Mr Spillane with an induction which provided clear consideration of safety issues which might arise on the site. The offender did not provide instructions to Mr Spillane in relation to the need to report safety incidents and hazards and/or how he should respond if he was asked. 5. The offender did not carry out an assessment of the workplace and operations at the site or consult with Harbour City Roofing or Bermagui Constructions Pty Ltd, the principal contractor, to identify hazards, assess risks and/or consider control measures in relation to the work Mr Spillane was asked to perform before Mr Spillane began working on the site. The offender also did not seek to consult with Mr Spillane to ensure that he was being required to perform works for which he had sufficient training and experience. The offender did not monitor the workplace to verify that appropriate health and safety measures were in place. 6. Mr Spillane began working at ground level assisting Harbour City Roofing workers Blake Tasker and Adam Simonovski to carry out internal roof works from an elevated work platform, by passing materials and tools to them. 7. On 9 February 2021, Mr Spillane fell from height at the site and suffered injuries (the incident). The incident was not caused by the acts or omissions of the offender. Steps taken after the incident 1. After the incident, the offender took the following actions: 1. created a Safe Work Method Statement (SWMS) template to be sent to workers prior to each job, stating that they are not to carry out any high risk work on site without notifying HLH Group first; 2. created a SWMS template to be sent to all clients when a new placement was starting, so that they are reminded to notify them if any workers booked will be undertaking high-risk work; 3. developed a client Work Health and Safety Checklist; 4. employed a full-time safety representative from January 2022; 5. increased the volume and frequency of site assessments; 6. updated the internal induction process to include more information on safety; 7. created SWMS templates relating to high-risk work; and 8. Ms Hunter and the offender's recruitment team undertook WHS Hazard Identification and Risk Assessment training. Offender's Case on Sentence 1. The offender read the affidavit of Nicholas Silvester sworn on 10 November 2023 on the record. The contents of the affidavit can be summarised as follows. 2. Mr Silvester is a qualified health and safety officer, who has worked in the safety industry since 2018. He has been employed by the offender as the Safety Co-ordinator since July 2023. He replaced the previous Safety Co-ordinator. 3. He has the following qualifications: 1. Cert IV in Work Health & Safety (BSB41415) issued on 14 December 2016; 2. Diploma of Work Health & Safety (BSB50420) issued on 10 February 2023; 3. Provide First Aid (HLTAID001); 4. General Construction White Card NSW WorkCover issued 24 February 2016; and 5. High Risk Work Licence Class(s) SB (scaffold) & LF (Forklift). 1. In his role, Mr Silvester oversees work health and safety and is responsible for managing, monitoring, reviewing and upgrading safety protocols and procedures for the offender. He reports directly to the offender's directors. Background 1. The offender was registered as a company on 6 August 2019 to take over the construction labour hire business of Hunter Labour Hire Pty Ltd (Hunter Labour Hire), which had been formed in 2017. The offender took over Hunter Labour Hire's labour hire business and its client base, which included Harbour City Roofing Pty Ltd (HCR). The managers and employees of Hunter Labour Hire were transferred to the offender. 2. At the time of the incident, the offender had approximately 110 placements on various construction sites across Sydney. 3. The offender had, as at 10 November 2023, 115 placements across Sydney. The Incident 1. In or about January 2021, HCR requested three general labourers to undertake work at the site. Luke Upton from HCR contacted the offender's Accounts Manager, Laird Ross, by mobile phone to explain that HCR needed three labourers with white cards to do basic labouring work at the site. Mr Upton told Mr Ross that no "working at heights" qualifications were required. 2. The offender's Terms of Business, which had previously been accepted by HCR, provided that, on attending the site, all of the offender's workers were to be given a site induction by HCR, as well as PPE as required. 3. The offender provided three labourers to do basic labouring work at the site as requested. Systems of Work Before the Incident 1. Hunter Labour Hire had developed a work health and safety management system for its construction labour hire business, which was transferred to HLH on or about 6 August 2019. 2. As part of this system, prior to the placement of HLH workers on a site, HLH required each host employer to complete a Company Details form, which included the offender's Terms of Business relating to the placement of each HLH worker at a host employer's site. The Terms of Business included the following requirements: 1. the Client was required to provide "all information reasonably necessary" to enable the offender to assess the suitability of a Temporary Worker for an assignment; 2. "[a]ll Temporary Workers must be adequately instructed, directed and supervised by the Client in the safe and proper performance of their duties as part of each assignment"; 3. "[t]he Client must provide Temporary Workers with a safe working environment in accordance with the relevant jurisdiction's current work health and safety legislation. During an assignment, the Temporary Workers are under the care and supervision of the Client regarding work hours, work health and safety and the manner in which the assignment is to be performed"; 4. "[t]he Client must consult, cooperate and coordinate with HLH on all health and safety matters relating to Temporary Workers"; and 5. "[t]he Client must not direct the Temporary Worker to perform any duties other than those for which the Temporary Worker was initially engaged without approval in writing from HLH". 1. Prior to the COVID-19 pandemic, workers applying for employment with the offender were required to participate in a pre-employment interview in-person with a recruitment manager. At the interview, the recruitment manager would verify the worker's qualifications, licences, training and experience. If the worker had suitable qualifications, licences and competencies, and suitable training and experience in the construction industry, the offender would make an offer of employment. Workers would be given a face-to-face induction by the offender upon commencement of employment. This included training on minimum PPE requirements, reporting of hazards, unsafe practices and incidents, site rules, tool box meetings and working from heights. 2. When the offender received a request for placement of a worker at a site, using the information provided by the client, the offender would match the client with an appropriate worker with relevant qualifications, licences, skills and experience. 3. The offender also required each host employer to provide workers with a site-specific work health and safety induction. 4. If the placement was an ongoing one, an account manager from the offender would attend the worksite, carry out a worksite safety inspection using the HLH Group Client Workplace Health and Safety Workthrough Checklist, met the worker and addressed any safety or other concerns with the worker and the client. 5. Prior to the COVID-19 pandemic, the offender aimed to attend at least two clients' worksites per week to provide ongoing support to its workers. 6. As a result of the COVID-19 pandemic, the offender experienced a decrease in requests for labour hire workers and a downturn in business. The offender also had a number of office and on-site workers leave, including two of the five account managers. As such, fewer workplace inspections took place and the offender was unable to interview prospective employees. Work with HCR 1. On 21 November 2017, Brook Baker, a director of HCR completed and signed a Hunter Labour Hire Company Details form, which incorporated Hunter Labour Hire's Terms of Business. After the offender took over Hunter Labour Hire's business in 2019, the offender and HCR continued to do business on the terms set by the Terms of Business. 2. On about 26 January 2021, Mr Baker contacted Mr Ross requesting placement of three general hands to move and cut up materials at the site. At the time, Mr Ross was an account manager for the offender in charge of providing labour hire workers to clients. Mr Ross identified Mr Spillane and two other workers as suitable and available for placement at the site. Mr Ross informed Mr Baker of the ability of these three workers qualified to perform ground-based general labouring work for HCR. Mr Ross specifically informed Mr Baker that the three workers, including Mr Spillane, did not hold "working at height" qualifications. 3. The offender did not inspect the site prior to 9 February 2021, because HCR was a longstanding client, as well as a result of the staffing restrictions caused by the COVID-19 pandemic. Actions Taken Since the Incident 1. On 25 May 2021, the offender provided its recruitment team, Ms Hunter, Craig Pritchard, Mr Ross, Damien Sweeney and Roddy McLean with refresher training in relation to Work Health and Safety Hazard Identification and Risk Assessment. This training consisted of a workshop conducted by the Recruitment Consulting and Staffing Association of Australia and New Zealand called "Mastering On-Hire and Contracting Safety for the On-Hire Industry". 2. The offender also created the position of Safety Co-ordinator. The ongoing cost of having the Safety Co-ordinator position is approximately $150,000 per annum. 3. A new email template is now sent to clients accepting new placements. This template requires clients to set out in an email the tasks the worker will be required to perform in detail, and to confirm that the worker will be inducted on to the site, taken through a risk assessment and have the tasks explained to them prior to commencing work. It also requires clients to notify the offender of any changes to the scope of the work prior to performance of the work. 4. The offender has also created a new Client WHS Checklist for clients to sign in advance of any workers being placed with them. 5. The offender ensures that all workers receive the Workers WHS Rights and Responsibilities Information. 6. A new template is sent to workers prior to each job. 7. The offender also reinforced to the account management team the importance of timely visits to client worksites and has increased the frequency of client worksite assessments. The offender currently conducts between eight to 15 site visits per week. The offender has also implemented a SMS worker safety check which is conducted weekly, which checks in with individual workers as to any safety concerns they might have. It also provides a link to the scope of works for the specific job. 8. The offender also conducts weekly safety meetings, which are conducted each Monday with the entire management team. 9. The offender co-operated with SafeWork, complying with the statutory notices issued by SafeWork, encouraging employees to make themselves available to assist SafeWork, and entering a plea of guilty at the earliest opportunity. Support to Mr Spillane 1. Mr Ross visited Mr Spillane during his time in hospital. Upon his discharge from hospital, the directors of the offender arranged for a support person to accompany Mr Spillane to his medical appointments and made sure he was driven there and back. The directors also arranged for the purchase of Irish goods for Mr Spillane and remained in touch with him until he left Australia for Ireland. Corporate Citizenship 1. The offender has made contributions to the community in the following ways: 1. regular donations to "Running for Premature Babies", a charity supporting neonatal units in hospitals around Australia by providing urgently needed neonatal equipment; 2. encouraging workers to enter the City2Surf race as a team to raise money for "Running for Premature Babies" and matching donations made dollar for dollar; 3. supporting the Sydney Irish Rugby team; and 4. supporting South Eastern Junior Rugby League Football Club by making financial donations. Remorse 1. Mr Silvester expressed remorse on behalf of the offender for its failure to fulfill its work health and safety duty. Consideration 1. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999. Objective Seriousness 1. The offender knew that its workers could be exposed to risks to their health and safety when sent to work for its clients as temporary workers. The offender had in place a documentary system that recognised and sought to manage those risks that was not enforced in relation to the placement of Mr Spillane. 2. The potential risk to a temporary worker included a risk of death. 3. The offender accepts by its plea that it should have provided Mr Spillane with training and information relating to the WHS risks at the site, carried out an assessment of the workplace, consulted with HCR to identify relevant risks and control measures and monitored the situation after Mr Spillane's placement to ensure that new safety risks did not arise. The offender conceded that the steps it could have taken were relatively simple and inexpensive to implement. 4. I accept HLH's explanation that its failure to enforce its documentary system was in part caused by the impacts of the COVID-19 pandemic on the availability of workers that it could place with clients and the restrictions imposed to respond to the pandemic that impacted its ability to meet with workers and to make site visits. 5. The offender had in place a contract with HCR that obliged HCR to adequately train a worker for any task required of them and to inform HLH of any change in the type of work allocated to a temporary worker. Further, in this case, HLH informed HCR that the workers being provided were not qualified to work at height. 6. I have taken into account the maximum penalty for the offence. Deterrence 1. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180]. 2. There is some need for specific deterrence in this case because the offender still operates a labour hire business where its workers are potentially exposed to many and varied risks in their placements with host employers. Conversely, the offender has undertaken significant improvements to its safety systems to address the management failures that occurred in the present case. Aggravating factors 1. There are no relevant aggravating factors Mitigating factors 1. The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender has only been in operation since 2019. 2. The offender is a good corporate citizen. The offender involves itself in worthwhile community and charitable activities. 3. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by reference to the extensive steps that it has taken to address the failures involved in this case that it has good prospects of rehabilitation. 4. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Silvester, on behalf of HLH, accepted responsibility for its failings and expressed sincere regret and remorse for them. 5. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%. Penalty 1. HLH NSW Pty Ltd is convicted. 2. The appropriate fine is one of $110,000 which will be reduced by 25% to reflect the discount for the plea of guilty. 3. I impose a fine of $82,500. 4. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2023