In the case of SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614 (16 October 2020), the Courts have found the principal contractors, J & CG Constructions Pty Ltd (J&CG), to be equally as culpable as the contractor when a subcontracted worker fell 6 metres from an unprotected ledge whilst stripping columns.
Under section 26 of the Occupational Health and Safety Act 2004 (VIC) employers have a primary duty to ensure that the workplace they are managing or controlling is safe and without risks to health. Principals usually bear less responsibility than contractors as they are have less direct control over the subcontractors’ duties, however if it is determined that they were aware of a risk at the site and their actions could have mitigated the risk then their primary duty will arise.
In this case, the contractor had informed J&CG about incomplete scaffolding by another contractor on two previous occasions. One of these occasions was just 10 days before the accident occurred. The Court determined that J&CG failed in their primary duties because:
- they failed to direct their scaffolders to rectify the gaps and permitted work to continue on the construction site;
- they also failed to implement measures to control the risk of the gap, such as barriers or an exclusion zone to prevent workers from accessing the area; and
- no risk assessment was undertaken to determine whether the SWMS by contractors identified and mitigated the risks of falls from heights.
These failures cost J&CG a fine of $180,000 and they were ordered to pay costs of $48,000.
Key lessons
- Principal contractors also bear responsibility for ensuring the health and safety of all workers on site.
- Principal contractors are responsible for ensuring all contractors have suitable SWMS for all high risk activities.
- If any safety risks are raised, principal contractors not only need to engage and direct appropriate people to mitigate the risk but must also put in place temporary measures to prevent the exposure of workers to those risks.
Written by Nina Hoang
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