FCW Lawyers

The Fine for NSW Bricklayers and Valid Trumps Fairness

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3 June 2020

The Fine for NSW Bricklayers – Shows no argument of contracting out of liability

On 5 May 2020 we told you about this  case (Safety Duties Beyond Contract Obligations) and noted the matter was awaiting sentencing.

You will recall that NSW Bricklayers tried to argue that it was not responsible for an accident as the contract did not require the implementation of certain safety measures.

In this case construction of a two-storey duplex development site was being undertaken and NSW Bricklaying Pty Ltd had been engaged by a sub-contractor to build the high brick wall which separated the duplexes. The wall collapsed onto two workers due to strong winds resulting in the death of one worker. SafeWork NSW subsequently found that the wall had been improperly supported at the bottom and there was no support at the top which could have prevented the accident.

NSW Bricklaying Pty Ltd argued that it was not responsible for preventing the risk as the act of bracing the wall had not been quoted in its contract of works for the site. As you can imagine, this was completely rejected by the Court who found that a SafeWork guide specified that principal contractors and masonry subcontractors were both responsible for conducting risk assessments of the work. The decision to plead not guilty has cost NSW Bricklaying Pty Ltd a fine of $500,000 compared to the two other parties charged who received significant discounts due to their early guilty plea resulting in fines of $80,000 each.

Remember you cannot contract out of your statutory work health and safety obligations. These duties will override any written contract, so you must always ensure you are discharging these obligations which would include applying sufficient controls (like risk assessments in this case) to the relevant risks.

Lessons

  1. The law around contracting out is complex law-it requires a business to show that the party undertaking the work can execute all safety measures to the level of ‘reasonably practicable’ safe environment and systems. That was never the case here
  2. Don’t run trials you can never win-there is no such thing as running something on principle-here the fine was large but the costs associated with he trial would have been more.

SafeWork NSW v Wang; SafeWork NSW v Effective Building and Construction Pty Ltd; SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 260

Valid Trumps Fairness – weighing the factors in unfair dismissal

Interesting decision from DP Anderson in South Australia on 29 May 2020. It illustrates the importance of making sure you have a valid reason to terminate. A valid reason must be a sound a decision objectively defensible and justifiable based on the facts.

In DA v Baptist Care, DP was required by statute to undergo psychometric testing to care for children. He failed the test and was terminated.

Baptist Care entered into an agreement with PsychCheck (a psychometric tester approved by Government) to undertake the test under a contract of services that Psych Check prepared saying it would just make the decision of suitability to work with children  and give no reasons and feedback. A controversial clause that should not be accepted and runs headlong into the employers obligations for fairness under the FWA. Just in the way a person who needs a licence to drive or use plant and equipment, may be an inherent requirement of the job but both the employer and employee need feedback as to why they failed and possibility of review or retaking the test.

The FWC held that the valid reason is the critical part in unfair dismissal, much of what they did was fair and on balance the unfair dismissal claim was dismissed. DP Anderson poured scorn on the contracting behaviour of both Baptist Care and PsychCheck and rightly so.

Lessons

  1. No matter how mandatory testing or licencing is, make sure the results are clear to the employee and employer
  2. Getting the valid reason right is critical, small failures in process can excused.

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce. Please contact Andrew Douglas at andrew.douglas@fcwlawyers.com.au or on 0488 151 503.

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