First 'alternative sentencing' for NSW WHS prosecution

A successful WorkCover NSW prosecution has resulted in the first orders made by a NSW court for a work health and safety undertaking.

A court-issued work health and safety undertaking is an alternative form of sentencing. This type of sentence allows the court to adjourn proceedings for a period of up to two years but attach specific conditions to the sentence that must be adhered to.

This use of alternative sentencing is to ensure that the best possible outcome can be achieved for workplace health and safety.

The prosecution related to an incident in 2012 where newly constructed brick walls collapsed on two bricklayers, seriously injuring one of the workers. The seriously injured worker sustained extensive fractures that required considerable treatment and rehabilitation.

The defendant, Desmond Long, was one of two directors of the company BN Longy’s Pty Ltd.

At the time of the incident, BN Longy was subcontracting for Becton New Leaf Homes Pty Ltd and Long was BN Longy’s supervisor on the site. Long pleaded guilty to the charge.

The court found that the brick walls were inadequately braced and that Long, as site supervisor, had failed to take appropriate steps to ensure that workers were kept at a safe distance from the walls when the wind picked up.

In her judgement, Magistrate Goodwin stated that it concerned her that Long was standing right at the site of the incident at the time it occurred but took no action to direct the workers away from the walls.

Magistrate Goodwin noted this was the first court-ordered work health and safety undertaking to be made in NSW under section 239 of the Work Health and Safety Act 2011, stating that while orders under this provision were likely going to be rare, the circumstances in this case made them appropriate. Magistrate Goodwin also hoped that her judgement would send a message about the importance of health and safety at work to the construction industry and to the community.

Magistrate Goodwin also made an order which required Long to undertake an appropriate training course for supervisors and provide evidence of the completion of the course to WorkCover within three months.

In this particular case, WorkCover is satisfied that the sentence imposed by the court is appropriate in the circumstances because it will assist in building an individual’s WHS capability and compliance with work health and safety laws.

WorkCover NSW also provides information about safety in high winds for the construction industry. The free guide ‘Masonry Wall Safety during Construction Work’ is available from the WorkCover website.