By Gaby Grammeno Contributor

A court has ruled that an employer’s moral culpability and responsibility for a serious incident was not reduced by a building inspector’s prior approval of inadequate building work – WHS duties can’t be transferred to others.

The worker was employed by a concreting business engaged in the construction of formwork, and the pouring and installing of concrete slabs, walls, driveways and footpaths.

On 24 May 2022, the business was undertaking work on a residential building site in a Canberra suburb.  Prefabricated formwork wall panels had been erected on the site and the workers’ task was to pour wet concrete into the panels. 

The previous day, a certifier had taken photographs of the job and completed a Building Inspector Record indicating that the building work complied with the Building Act 2004 and it was ‘OK to pour concrete and proceed with work’.

During the transfer of the second load of wet concrete mix into the concrete pump, one of the workers – on his first day of working at the site – was standing near the wall when it began to bow and collapsed onto an embankment, trapping him.

Other workers tried to lift the wall off him but it was too heavy. Another man who was working up the road ‘heard screaming’ and drove his bobcat to the site where he began shifting the soil and lifting the wall. 

The trapped worker was eventually freed after another person used a concrete cutter to cut the wall and the steel reinforcement bars. 

The subsequent WorkSafe investigation revealed a range of problematic issues at the site. Despite the certifier’s approval, the panels had not been adequately braced and did not meet the manufacturer’s minimum requirements to ensure the wall’s stability. 

The structural engineer’s report noted seven aspects of the inadequate bracing, such as the spacing of screws not meeting the recommendations of the Timber Design Code. It concluded that ‘an unexpected lateral force (such as an unexpected movement from the concrete pump or activities from tradesman during concrete placement) would likely result in the collapse of the wall as the temporary bracing was unable to prevent the overturning of the wall’.

The work environment was ‘inherently unsafe’, as the worker’s employer had failed to implement and enforce a Safe Work Method Statement identifying the risk of formwork collapse and the control measures to mitigate this risk. In addition, the workers had not been given relevant training. 

The concrete contractor had not conducted any safety meetings or other safety discussions, apart from providing informal instructions to workers.

The company was charged with breach of the Work Health and Safety Act 2011 – its failure to ensure a safe working environment had exposed workers to the risk of death or serious injury, a category 2 offence with a maximum fine of $1,500,000.

The case was heard in the Magistrates Court of the Australian Capital Territory.

 

In court

Magistrate James Lawton observed that ‘workers should be afforded the highest level of protection from harms to their health, safety, and welfare from hazards and risks which may arise at work’. 

He said any accident indicates a risk, and the objective seriousness of the risk would be assessed where there was an obvious and foreseeable risk to health and safety and appropriate measures were not taken despite being available and feasible.

Though the worker in this case did not have life-changing injuries, it could have been much worse – the unsafe work methods gave rise to a grave risk of death or serious injury, and proper construction and bracing of the wall panels would not have been overly complex, burdensome or even ‘mildly inconvenient’ for the employer.

Magistrate Lawton said the ‘substandard’ approval from the certifier did not absolve the concrete contractor of its duty to protect workers’ health and safety – blame could not be pinned on the building inspector.

He said the ‘starting point’ for the penalty to be imposed was $300,000, but the employer had demonstrated remorse for the incident, had taken steps to eliminate the risk, and had undertaken appropriate training. 

In these circumstances, the fact that the business pleaded guilty entitled it to a 25% discount, resulting in a fine of $225,000.

 

What it means for employers

Employers must comply with their work health and safety duties regardless of whether another person or business also has WHS duty in relation to the same activity.

 

Read the decision

Agius v JB Slab Pty Ltd [2025] ACTMC 2 (21 February 2025)