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By Gaby Grammeno Contributor
The worker was a labourer with a business engaged by a local council to undertake redevelopment of a seven-hectare works depot in a Sydney suburb.
Workers had been dismantling a workshop over a two-metre deep concrete pit which was to be emptied of various drums and tanks then filled to make way for a new concrete pavement entrance to a weighbridge.
Some of the drums and tanks had warning labels noting flammable contents, and all had been emptied except an unlabelled waste oil tank used to store oil from vehicles serviced at the site.
In August 2022, in preparation for the removal of the tank, the worker was using an angle grinder to cut a pipe attached to it when sparks from the grinder ignited oil in the tank, causing an explosion and serious burns to the man.
SafeWork NSW charged the business with contravening s 32 of the Work Health and Safety Act 2011 (NSW) – exposing the worker to a risk of death or serious injury – an offence with a maximum fine of 17,315 penalty units ($1,860,843.05).
The employer pleaded guilty, and appeared for sentencing in the NSW Industrial Court in February 2025.
In court
Judge Jane Paingakulam reviewed evidence that before the incident, the employer had been taking active steps to manage safety as part of the demolition process. Measures in place included a WHS management plan, a daily pre-start hazard assessment checklist and a site-specific safe work method statement (SWMS) for demolition.
However, this SWMS did not address the risk of hot work carried out in an area containing flammable substances. Induction records failed to identify the site-specific hazardous chemicals, areas, or atmospheres, or ignition sources for hazardous chemicals, and the worker who was burned had not been trained in regard to the specific hazards associated with the site.
A ‘refresher SWMS’ that was not site-specific did address works conducted in areas that may have a ‘contaminated or flammable atmosphere’. It said all areas of the workplace should be checked for anything that could be a fire or explosion risk, or any toxic or other hazardous material present, and that all hazardous materials must be clearly identified.
However, the refresher SWMS did not relate to work in the pit, and the pit was not examined for flammable or other hazardous substances before the incident.
The employer had been given a Construction Environmental Management Plan which identified the presence of various oil drums and tanks in and around the pit, together with their contents.
When the workers began dismantling the pit, some were using grinders to remove hydraulic rams, other tanks and metal covering the pit, despite the employer having told the council that the workshop area would be deconstructed in the same manner that it was constructed, which excluded ‘hot work’ such as the use of grinders.
On the day of the incident, the worker entered the pit alone and began using the angle grinder to cut through a thin pipe connected to the waste oil tank so it could be lifted out. An explosion occurred and a flame approximately 10 metres high engulfed him. He managed to get out of the pit and was given first aid by other workers.
He was subsequently placed in an induced coma and airlifted to hospital, with 15% mixed dermal oil burns to his face, abdomen, back and both arms. He received two skin grafts.
Risk of explosion with flammable liquids
SafeWork NSW inspectors later observed that the side of the waste oil tank was ruptured and it contained a dark liquid which had spilled into the pit. Petroleum-based oils are a common example of a flammable or combustible liquid.
Hot work such as grinding on containers like drums or tanks that have not been properly decontaminated is a common ignition scenario resulting in fatalities, and explosions can be more violent when a tank or pipework contains a mixture of flammable liquid and air.
Precautions to be taken before and during hot work to prevent the possibility of fire or explosion are spelled out in detail in relevant regulations, codes of practice, Australian Standards and other guidance material which was available to the company.
A hot work permit system is a system designed to eliminate or minimise risks associated with hot work, but there was no hot work permit system in place at the time of the incident, and workers were able to freely access hot tools.
The original scope of the upgrade works did not involve demolition or dismantling of any waste oil tanks. None of the contractor’s workers had been tasked to enter the pit on the day of the incident, and the removal of the waste oil tank was not an allocated task.
However, the council’s workshop supervisor had asked the site supervisor if the contractor’s employees could help remove the tanks. On the morning of the incident, workers had lifted two other tanks from the pit.
Due to a breakdown in communication, the contractor’s director was not aware that work was underway to remove the tank from the pit. He said that if he’d known, he would have required a risk assessment and prohibited the use of the grinder.
The incident had a profound effect on him, and safety systems at the site were comprehensively upgraded after the incident.
While admitting there were measures it could have and should have taken, the employer argued that the seriousness of its offence was in the lower range because its contract with the council did not cover what the worker had been doing, and it could not have foreseen the consequences of the worker’s involvement in activities it did not know about.
Judge Paingakulam rejected this argument because even a ‘cursory inspection’ would have made it clear that the pipe had to be cut before the tank was removed.
In deciding on the sentence, the judge took into account the aggravating and mitigating factors. The harm to the worker was substantial, with permanent scarring on his arms, face, leg and back, and the skin grafts left him unable to regulate his body temperature.
However, the employer had no prior convictions, was otherwise of good character, showed remorse and contrition, greatly improved safety systems after the incident, and pleaded guilty.
The employer was convicted and fined $180,000 plus costs, after a 25 per cent reduction to reflect the guilty plea.
What it means for employers
Safety systems will not protect against accidents if there are gaps in them – such as failure to identify particular risks – or if they are undermined by breakdowns in communication.
Employers need to make sure they know what activities their workers are actually engaged in – not just what’s in their contract – and must ensure risks have been identified and managed in accordance with WHS regulations and relevant guidance such as codes of practice.