A well-regarded family building company that took two decades to develop safety policies has been fined $450,000 after its "litany of egregious breaches of duty" led to a subcontractor falling to his death at a construction site.
Agreed facts tendered to the ACT Industrial Court state that Better Building Holdings engaged Thomas Magi, 60, to provide carpentry work in 2019 during the building of a three-storey residential dwelling in Denman Prospect.
However, he was not inducted into any safe work method statement, including in relation to working at heights.
Four months after being contracted, the company obtained a quote for scaffolding, but there was no fixed date for installation.
Mr Magi, who regularly provided work to the company, worked on the second level at the site from January without fall protection, and was exposed to potential falls of two to six metres across some areas.
In February 2020, while working on that level, Mr Magi fell 6.4 metres over an unprotected edge and suffered fatal injuries.
Prior to the fall, Mr Magi agreed to use a mobile scaffold to install timber around the site perimeter as protection after site supervisor Benjamin Perrett told him to.
Another employee also told Mr Magi to be careful and put up handrail prior to the fall, but he did not do so.
Better Building Holdings in February pleaded guilty to failing to comply with a health and safety duty, in which the failure exposed a person to the risk of death or serious injury.
Two months following the death, the company had scaffolding installed around the building's perimeter.
A WorkSafe ACT investigation found that level two had no edge protection at all, and while mobile scaffolding was present at the site, it was inadequate to protect workers.
The investigation also found the company's work health and safety management system had flaws, including incomplete safe work method statements for the site in question and at other sites the company worked at.
This was despite the company having a work health and safety plan related to the Denman Prospect building.
Site supervisor blames 'Tom's complacency'
During an interview with investigators, Mr Perrett, the site supervisor who has been with the company for 12 to 14 years, said he had never done any training related to working at heights, and that he had prepared a safe work method statement "many moons ago".
He also said he had never been pushed or asked by his office to prepare or use a statement.
When asked how he had found Mr Magi's attitude regarding working at heights, Mr Perrett said "[Mr Magi did] stuff that I wouldn't do personally", and when asked why the incident had happened, he said he believed it was "because of Tom's complacency".
"If he followed instructions, he'd still be here," Mr Perrett said.
"We wouldn't be having this conversation. It's awful to say that. It's really hard to say it."
Company director Ivan Juric in his interview said the company had a work health and safety policy that subcontractors signed, but when questioned how he knew the policy was enforced, he said he did not know.
Criminal culpability not reduced
Chief Magistrate Lorraine Walker on Thursday described the case as "a litany of egregious breaches of duty".
She dismissed the offender's point, made during court proceedings, about Mr Magi's safety-related conduct, saying the company had a non-delegable duty.
Ms Walker said while Mr Magi's conduct contributed to his death, his duty overlapped with the offender's and it did not mitigate the company's criminal culpability.
Ms Walker said the guilty plea was an expression of remorse, but the company did not take any positive action, such as providing financial or social support to the victim's family, to address the impact of its offending.
She also rejected the defence argument that adverse publicity of the case amounted to extra-curial punishment, saying "unwelcome publicity is both a usual and expected consequence of criminal offending".
She said such publicity was also a factor in deterring others.
The court heard the company had rudimentary safety plans in 2015 and engaged a consultant to help develop its policies in 2018, more than two decades after it started operating.
Ms Walker said it was surprising the well-regarded company had managed to operate for that long with "no proper safety measures in place", and "no enforcement of even the most basic protection against such an obvious risk".
She said the risk of death or serious injury in this case was "entirely obvious".
"The fact that the risk eventuated and the man died was entirely unsurprising," Ms Walker said.
The court heard the company had since "invested hundreds of hours in reviewing and updating" its safety procedures, but Ms Walker said measures were readily available and may have prevented the death had they been enforced.
The Chief Magistrate also took into account the company's lack of criminal history, industry stakeholders' letters of support, and the "apparently exceptional" workmanship and service by the company.
Ms Walker convicted the company and fined it $450,000 based on its capacity to pay a significant fine.
"Any penalty that the court imposes will never adequately reflect the loss experienced by family members of a person who did not make it home safely," she said.
In response to request for comment, Better Building Holdings said it had tendered a letter to the court that included the safety steps it had taken since the death.
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