A court has convicted an employer despite his diminished blame for unsafe work, after unusual circumstances conspired with pressure from another PCBU to undertake a risky task. 

When the employee of a roofing contractor arrived at the site of a two-storey residence in a Sydney suburb to complete work on the roof, he noticed that the scaffolding used to gain access to the roof was incomplete – planks were missing from multiple working decks. 

He phoned the office to let his employer know that the scaffolding deficiencies – the subject of earlier complaints – had not yet been rectified, and left the site. The roofing contractor called the builder responsible for the project, and the builder later advised that the problems had been fixed and it was safe to go ahead with the work. 

The following day, when the worker returned to the site, he observed that nothing had changed – the scaffolding was still incomplete. However, he was under pressure to finish the job, as the builder had been ‘constantly calling … and making threats not to pay them’. 

The worker – a qualified roofer – called the office, saying he needed assistance from another labourer. 

Because no labourer was available, a member of the company’s admin staff came to the site to assist. 

Shortly after starting work, they were seen by a SafeWork NSW inspector, who recognised that the incomplete scaffolding exposed the workers to the risk of falling from a height of more than six metres. The inspector also observed that neither worker was wearing a harness, and there were gaps in the site fencing and no locks, which allowed unauthorised access to the site. 

SafeWork NSW charged the roofing contractor with failing to comply with its health and safety duty under the WHS Act. It also charged the company director – as an officer of the PCBU he’d failed to comply with his WHS duty to exercise due diligence to ensure the company complied with its WHS duty. As a result, two workers had been exposed to a risk of death or serious injury. 

The company director pleaded guilty to both charges.  
 

In court 

The Industrial Court of New South Wales heard the case to determine the appropriate sentence in the circumstances. 

Justice Jane Paingakulam heard that the safety systems the employer had in place suffered from the numerous deficiencies, including a safe work method statement that failed to address site-specific risks, little or no compliance by workers with the company’s WHSE Management System, and no recent inspections of the site. 

In addition, workers appeared to be confused about how to use a pre-start risk assessment checklist and it had not been completed on the day. Safety documentation was in English, and could not be understood by the roofer, who’d been received some safety training from another Tamil-speaking worker.  

SafeWork NSW submitted that the offences constituted an objectively serious breach due to the obvious and easily foreseeable risk of a fall, the potential gravity of the consequences if that risk materialised, and the straightforward nature of steps that were available to avoid it.  

This was compounded by the fact that six months had passed since the last site safety inspection. 

A key issue in the company’s failure to comply with WHS duties was the absence of a supervisor on site, but there were extenuating circumstances. The roof had been put on the building several months earlier, and workers only had to return to the site to finish one small part of the job. 

The director’s family had been dealing with a personal tragedy and was overseas when the SafeWork inspector made observations at the site. Coincidentally, the General Manager was also absent, and the daily operations manager with responsibility for allocating work and giving advice on projects had called in sick that day. 

However, it was not as if the officer responsible for the insufficient supervision had acted with a high level of disregard for his WHS obligations – the company had devoted resources to establishing processes to eliminate or minimise risks, and if those established systems had been adhered to, the risk would have been eliminated or at least reduced. 

Justice Paingakulam also considered that the builder’s misleading advice about the scaffolding deficiencies having been fixed was a significant matter that mitigated the roofing company’s offence. It was primarily the builder’s failure to ensure the scaffolding provided workers with safe access that gave rise to the risk. 

The roofer who observed the scaffolding’s inadequacies but went ahead despite that, due to pressure from the builder, was also at fault. 

Both the roofing contractor and its officer – the director – therefore had diminished moral culpability due to actions of another PCBU, and in view of the fact that the company’s safety systems had at least been sufficient to prompt the worker to call the office the previous day and leave the site, having observed that the scaffolding was incomplete.  

For these reasons, the objective seriousness of the offences was in the low range. In the light of the unusual circumstances, this meant there was a reduced need for general or specific deterrence for both offenders, and it would be inappropriate to impose an adverse publicity order on the company. 

Ultimately, the sentence was further discounted due to the company’s limited capacity to pay a fine. The company and its officer (the director) were both convicted. Justice Paingakulam fined the company fined $35,000 and the director $15,000, plus a total of $30,000 in costs. 
 

What it means for employers 

Where risks are well-known and foreseeable, it is not enough to have safety systems in place if compliance is lacking due to inadequate training and supervision. 
 

Read the decision 

SafeWork NSW v SSE Roofing Pty Ltd; SafeWork NSW v Semaan [2025] NSWIC 22