Working from heights in the spotlight: a legal analysis

Falls from heights are one of the most common causes of death or serious injury in the workplace. Although there are a range of technical requirements for compliance with legislative obligations depending on the industry, nature of the work and jurisdiction that are beyond the scope of this article to list out, there are a range of measures that all organisations can take to ensure compliance with safe work requirements, writes PATRICK WALSH, Partner at Mills Oakley.

Working from heights is any work performed where there is a risk that a person will fall from one level to another. In all jurisdictions (except South Australia which defines “high risk construction work” as, amongst other things, work that involves a risk of a fall from more than three metres) the applicable regulations identify work that involves a risk of a fall from more than two metres as one of the forms of high-risk construction work as construction. In Victoria, the regulations proscribe requirements for any type of work that involves a risk of a fall from more than two metres.

In 2023, the New South Wales Government announced a statewide blitz that has involved construction site inspections, focused on reducing the number of construction workers killed or injured in falls at work. WorkSafe Victoria notes that there have been 16 fatalities and 1983 injury claims arising out of falls from heights in the construction industry between November 2019 and December 2023.

So what should organisations be doing to ensure compliance?

Look to workplace culture

It may come as a surprise that the first point identified in this article is culture. However, something that really stands out in the NSW SafeWork Work at Height Construction Blitz reports for 2019 and 2020 is that one of the most common responses from principal contractors or site supervisors as to why they were non-compliant for key checklist questions is that “they had no excuse”. Indeed, the 2019 version of the report notes that 29 out of 76 reasons cited for non-compliance with void and edge protections was that “there was no excuse”.

Performing work in the various forms of the construction industry gives rise to a range of challenges in managing risks to health and safety. These include managing different (and changing sites), extensive use of contractors and consistent scheduling pressure. In a decision considering the nature of an officer’s obligations pursuant to section 27 of the Work Health and Safety Act 2011 (NSW), his Honour Russell SC DCJ noted “Miller was a medium-sized operation. It had eight depots spread throughout the state. It used a large number of transport drivers operating over a wide area. Unlike a one or two person business (such as the one Judge Scotting considered in Hetherington), a managing director in the position of Mr Doble cannot know everything that is going on at any given moment. To run a corporation there must be a level of delegation.”¹ In order for delegation to be effective, however, the culture of the organisation needs to ensure that the person charged with the responsibility will be as diligent in carrying out the work as the person who is accountable for it under the relevant work health and safety legislation.

One of the key ways in which an organisation can strive to ensure that any work performed from heights is performed safely and the relevant workers adhere to the necessary control measures is to routinely assess the competence of workers performing any work at heights greater than two metres. In SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437 a worker was completing timber batten removal work when he unhooked his harness while next to the ladder and tossed a rope to another worker before removing his lanyard, and fell between timber beams after stepping onto friable asbestos roof sheeting. The worker later died from his injuries. In the resulting prosecution the defendant accepted that the worker “was not formally qualified, not experience in working at heights and that the supervision that was in place failed, as Mr Thay should not have been there”.

Where possible, remain grounded

Before commencing work that carries the risk of a fall, an organisation must identify whether any (or all) of the work can be performed on the ground; thus, either eliminating the risk altogether or reducing a worker’s exposure to the risk.

Understand and implement the hierarchy of controls

In the event that performing work at heights cannot be avoided, an organisation’s compliance measures must apply the hierarchy of controls. In this regard, the model work health and safety regulations are prescriptive as to the order of measures that need to be implemented:

1. Use of a solid construction, which means a surface that is capable of supporting all persons and things placed on it, that has barriers around its perimeter and any openings, an even and readily negotiable surface and gradient, and a safety means of entry and exit;
2. Use of a fall prevention device, such as a fence, edge protections, working platform, and/or covers;
3. Use of a work positioning system, such as a harness; or
4. Use of a fall arrest system, such as a rope grab system.

Don’t forgo the administrative controls

Administrative controls can often be forgotten when organisations are overly confident that they have managed the risk with engineering controls, but it’s critical that these controls are properly implemented for two key reasons:

1. Reasonable administrative controls should be included as part of a range of control measures to prevent overreliance on any one control measure; and
2. Regulations governing the constructions industry impose various requirements around the creation, communication and implementation of safe work method statements for any high-risk construction work.

In Farell v Syntec Diamond Tools International Pty Ltd [2023] SAET 113, Deputy President Magistrate Eaton noted that:

“What is clear from the evidence is that Syntec appreciated the risk posed to its workers by the CDW and modified the machine to improve its safety on several occasions in response to further identified risks. There is no suggestion that it ignored or disregarded the requirement for effective guarding on the machine or directed its workers to operate the machine in an unsafe manner. Its failure lies with its confidence that the engineering solution was adequate in the absence of more formal and implemented safe operating procedures and staff safety training and supervision.”

It is incumbent on any organisation that performs this type of work to familiarise themselves with the regulations applicable to the jurisdiction in which the work is being performed. At the very least, in addition to any reasonable engineering controls, any organisation (particularly in the construction industry) needs to ensure that a safe work method statement is prepared and provided to any person involved with the work that:

1. Identifies the work that is worked from heights and/or “high risk constructions work”;
2. Specifies the hazards relating to the worker and the resulting risks to health and safety;
3. Gives a description of the control measures to be implemented; and
4. Describes how the control measures are to be implemented, monitored and reviewed.

Be mindful that obligations exist “beyond site”

Businesses that provide services to the construction industry play an important part in meeting safety obligations onsite. In Farrell v Combe Pearson Reynolds Pty Ltd, Jack Adock Consulting Pty Ltd [2024] SAET 30 two engineering business retained to design and then audit the design of a roof structure were prosecuted after the roof structure collapsed, causing minor injuries to two apprentices working on the structure affixing roof sheeting. The fault, which led to the collapse, was that the bolts stipulated in the design to hold down the base plates of the columns for the spectator terrace were inadequate. This fault was not identified during the independent compliance certifications process provided by the second defendant. It was the case with both defendants that there was a failure in respect of the internal review process.

Conclusion

Working from heights remains one of the most dangerous types of work in Australia in terms of workers killed or seriously injured.

In order to ensure adherence to legislative safety requirements, organisations should be mindful that they:

• routinely review the competence of any workers engaged by the organisation, or through a contractor, to perform work at heights;
• have robust systems of work in place that adhere to the hierarchy of controls and include administrative controls where appropriate; and
• can establish compliance with the regulations in place in the jurisdictions in which they operate.

Patrick Walsh is a Partner at Mills Oakley.

^{1. SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 at [264].}

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