In brief - A significant penalty issued by the NSW District Court for a work health and safety breach is a strong reminder that the scaffolding industry and construction works should continually assess their work environment and ensure the risks to health and safety of all persons are properly assessed and controlled.

SafeWork NSW commenced proceedings against Synergy Scaffolding Services Pty Ltd for a breach of section 31 of the Work Health and Safety Act 2011 of NSW for breaching its health and safety duty through reckless conduct and exposing seven workers to a risk of death or serious injury. The maximum penalty the company faced was $3 million.

One worker killed and another seriously injured in Macquarie Park scaffold collapse

Synergy Scaffolding Services (Synergy) had been engaged by a construction company GN Residential Construction Pty Ltd (the Ganellen Group) (GN) to design, protect, maintain and then dismantle the scaffolding for the construction project in Macquarie Park in Sydney, NSW.

Over several months in 2018, the scaffolding structure that was tied to a building was gradually dismantled under the direction of Synergy and GN. By 1 April 2019, most, if not all of the ties to the building had been removed, yet the scaffold was still in use by workers at the site. On 1 April 2019, the scaffolding was also grossly overloaded. 

On 1 April 2019, the scaffolding collapsed and two workers were caught and trapped underneath with one 18-year-old worker suffering fatal injuries and the other worker suffering serious crush injuries. 

Two other workers were on level nine of the scaffold when it started to collapse and jumped from the scaffold onto the building. Three further workers who were working near the building at the time had to run to avoid the collapsing scaffold.

Issues with Synergy's Systems of Work and SafeWork Method Statement, and failures to carry out safety walks and inspections of the scaffolding

Synergy had in place Systems of Work and a SafeWork Method Statement (SWMS) to erect, alter and dismantle scaffolding, which was dated 8 December 2017. The SWMS did not address the risk of working under scaffolding, collapsing scaffolding or unauthorised alterations to the scaffolding. It also did not address the risk of overloading scaffolds or placement of scaffold ties. Regarding the risk of falling from scaffolding, the SWMS directed the reader to the Australian Standard titled, "Guidelines for Scaffolding".

From about October 2018 an issue involving tampering with the scaffolding was identified and it was agreed between Synergy and GN that Synergy would try to undertake weekly inspections of the scaffolding onsite. 

Initially inspections were conducted monthly. However, Synergy did not perform any safety walks or inspections in the three weeks leading up to the incident. During this period, Synergy's employees were on the scaffold attending to its maintenance on the hoist/loading platform scaffold. Synergy did not perform an inspection on the scaffolding on 1 April 2019 before the workers were permitted to use it.

GN had weekly safety walks of the entire project, including the building and scaffold. The walks involved union delegates and representatives from all trades, including Synergy. 

Outcome of the SafeWork NSW investigation

SafeWork NSW inspectors attended the incident scene and conducted their investigation. It was found that:

  • no obvious ties were observed to still be connected to the collapsed scaffold or on the facade of the building; and

  • loose ties and potential tie components were seen amongst the wreckage.

It was further found that the magnitude of the live loads on the scaffold and the fact that the scaffold was not laterally restrained with vertical bracing contributed to the collapse. 

Construction company also fined for breach of WHS Act, and Court's findings on Synergy's failures to ensure a safe work environment 

A charge against GN, for breaching the WHS Act, was dealt with in 2020. In December 2020, GN entered a plea of guilty to a Category 2 breach of the WHS Act and received a fine of $900,000.

The Court found that Synergy constructed the scaffold without the vertical bracing in contravention of its own design and the Australian Standard. The offender had actual knowledge of the requirements of the Australian Standard. 

The offender knew that there had been a history of the unauthorised removal of ties and alteration of the scaffold at the site. Between 5 March and 1 April 2019, the offender knew that the scaffold was grossly overloaded with building materials and the weight of the hoist ties. 

Further, the almost complete absence of ties to the building would have been obvious if a visual inspection of the scaffold had been conducted. The offender did not inspect the scaffold after 5 March 2019 even though it had undertaken to conduct weekly inspections.

The Court heard that Synergy had no prior convictions of the WHS Laws.

The Court in determining that the maximum penalty was $3,000,000 determined that the appropriate penalty was $2.2 million reduced by 10% for the plea of guilty to a fine of $2 million.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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