Civil Law

By Phoebe Tulk


Work(not)Safe in the ACT

On the 28th of February 2022, Better Building Holdings Pty Ltd pleaded guilty to a charge laid against the company in 2020 in relation to the death of carpenter Mr Thomas Magi. Mr Magi had been working at a residential worksite on Temple Terrace in the suburb of Denman Prospect in the Molonglo Valley District of Canberra when he fell from a height of over 6 metres onto concrete below. Deputy WHS Commissioner Amanda Grey decried the accident as “preventable” in a recent press release from WorkSafe ACT.

Better Building Holdings failed to adhere to its obligations under section 32 of the Work Health and Safety Act 2011 (ACT) (“the WHS Act”) which provides:

A person commits a category 2 offence if –

  • the person has a health and safety duty
  • the person fails to comply with that duty; and
  • the failure exposes an individual to a risk of death or serious injury or illness.

Better Building Holdings now faces a penalty under the ACT’s work health and safety laws of up to $1,500,000.00. A sentencing hearing is scheduled to take place on 6 May 2022, in the industrial division of the ACT Magistrates Court.

The death of Mr Magi on the 4th of February in 2020 occurred within 1 month of the death of a 47-year-old worker on the 11th of January 2020 at another residential construction site in Denman Prospect. The events led to WorkSafe ACT carrying out what they dubbed as an “inspection blitz of residential construction sites” in the area. Yet, workplace health and safety issues similar to those which led to the death of Mr Magi had failed to improve by the end of 2020, with WHS Commissioner Jacqueline Agius reporting that “during this inspection we saw workers risking their lives by working at heights with no fall protection, using unsafe scaffolding, and using ladders to support single planks.” Other contraventions of the ACT’s work health and safety laws identified in the inspections included a lack of Safe Work Method Statements (SWMS), despite being required for all high-risk constructions sites under section 199 of the Work Health and Safety Regulations 2011 (ACT) (“the WHS Regulations”), site security, signage, or electrical safety.

A 2012 enquiry into compliance on construction sites in the ACT with work health and safety rules found the rate of serious injuries to be 31% higher than the Australian average. WorkSafe ACT’s ‘Getting Home Safely’ report and its 28 recommendations for improving safety in the construction industry were accepted by the ACT Government in February of 2013 and ultimately led to the establishment of the industrial division of the ACT Magistrates Court later that year.

Fast forward to the present, and unfortunately, site safety is still far from perfect. In December of last year, a worker on a construction site in Taylor died after being crushed by a trailer, and by the week before Christmas, WorkSafe ACT had completely shut down 2 sites and distributed at least 94 notices for unsafe work practices. Key issues recognised included a lack of access and egress, precautions against the risk of falling from large heights, and a failure to manage silica dust. On the verge of 2022, there were nearly 100 unsafe construction sites operating within a single Gungahlin suburb. Although WorkSafe ACT has several investigative campaigns planned for 2022, it was acknowledged in their press release on the 28th of February that “significant breaches continue to be observed in this industry”.

How do I ensure my worksite is safe?

Pursuant to section 309 of the WHS Regulations, the principal contractor for a construction project must prepare a written work health and safety management plan which details the responsibilities of all persons at the worksite before the project commences. This management plan will account for the risks associated with construction projects, identify all site-specific health and safety rules, and put in place arrangements for managing any work health and safety incidents that may occur. The need for a management plan reflects the complexity of construction work, which usually involves numerous contractors and subcontractors in high-risk circumstances that can change from day to day.

If you are a person conducting a business or undertaking in relation to the construction industry, you must ensure you have a management plan before beginning work. An individual that fails to complete a management plan is at risk of being penalised up to $6,000.00, and a body corporate up to $30,000.00.

If you are working on a construction site, it is relevant to know that the principal contractor has a duty under section 310 of the Regulations to ensure, so far as is reasonably practicable, each person on the site is informed of the management plan. Further, as provided for under section 313 of the Regulations, the management plan must remain readily accessible for workers to exercise their right to inspect. A principal contractor who fails to ensure that the management plan is accessible to their workers is at risk of being penalised up to $3,600.00, and a body corporate up to $18,000.00.

Further, section 84 of the WHS Act outlines the rights of a worker to cease, or refuse to carry out, work if there is a reasonable concern that it would expose the worker to a serious risk to health or safety. Section 88 provides that exercising the right to cease or refuse unsafe work does not affect the continuity of engagement of the worker if the worker has not unreasonably refused to carry out alternative work. In simple terms, you cannot be fired for refusing to climb the dodgy ladder or traverse the potholed construction site.

Getting legal advice

It is imperative that you obtain legal advice if you are uncertain about your obligations as an employer or whether your workplace is compliant with the relevant construction rules.

If you are injured while working on an unsafe construction site, we are readily available to assist in your workers compensation and/or personal injury claim. The team at Aulich Civil Law is very experienced in workplace claims and currently represents the best interests of many workers injured on construction sites that have lacked the requisite standards of safety.

If you twisted your knee on site last week and are ignoring that continuing twinge of pain in the hope it eventually goes away, don’t. Please attend your doctor to keep a record of the injury and contact us immediately.