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During the course of March 2014, WGA was issued with three prohibition notices in respect of similar contraventions. During conversations with the inspector about the issue prior to the first prohibition notice, Mr Hassan had replied with words to the effect of "I don't really see it as such a problem" and "why would someone reach out and touch it".
The risk was then detailed to Mr Hassan by the inspector with words to the effect of:“All it would take is for a worker to pick up materials, such as scaffolding or those lengths of steel, turn around and they could easily come into contact with the power lines. It is unrealistic to expect busy construction workers to simply remember the power lines and stay away from them. That’s why you need to have physical and visual barriers, particularly if you are not always on site when work is taking place. Tiger tails are not a control measure and do not provide protection against electric shock or electrocution.”Mr Cullen commenced work on the site in May 2014. He did not receive an induction or attend any tool box talks during the course of his work at the site. Mr Cullen had not previously conducted high density residential work or worked in the vicinity of power lines, as he usually performed more straightforward residential and renovation work.Judge Scotting of the NSW District Court heard that in June 2014, WGA sought, but failed to obtain, approval from Sydney Trains to isolate the powerlines so that work could be carried out because the building had been constructed too close to the upper power lines and the conditions for turning the power back on could not be met. There was written evidence that in May 2014 Mr Hassan had acknowledged (to both the SafeWork NSW inspector and Sydney Trains) that the power needed to be isolated before undertaking the work that Mr Cullen was required to perform.WGA director, Mr Hassan, then "pleaded" with Mr Cullen to install the angles on the windows facing the powerlines because the work needed to be completed before the scaffolding was removed the following weekend.Mr Hassan did not tell Mr Cullen about the presence of live powerlines, that they were high voltage, nor did he receive instruction that he should not go onto the window ledge to install the angles unless power was isolated in those lines. There was no barrier tape or signage in place warning Mr Cullen of the risk posed by the high-voltage power lines. Further, Mr Cullen was not made aware that an improvement notice had been issued in respect of the work.Judge Scotting found that WGA had actual knowledge of the risk posed by the work and the control measures that were required to alleviate the risk. Mr Hassan had been provided with a copy of the Code of Practice Working Near Overhead Power Lines and the NSW Transport System Guide Working around Electrical Equipment, as well as clear and unequivocal instructions from the SafeWork NSW Inspector and Sydney Trains about the control measures that were required to avoid this very risk. Judge Scotting stated that: "the likelihood of the pleaded risk occurring was high if the control measures were not adopted. The potential consequences were catastrophic in that an electric shock was likely to cause death or serious injury because the upper power lines were carrying 33Kv”.Judge Scotting took the view that the fact that the power could not be isolated did not affect the reasonable practicability of the necessary measures to stop work on the window ledge by either waiting until the power was isolated before allowing Mr Cullen to do the work or directing Mr Cullen not to work on the window ledge unless the power was isolated. Sydney Trains was in the process of trying to find a solution to the problem (created by WGA in constructing the building too close to the power lines). Judge Scotting stated that "WGA should have delayed the work until a solution was found". Judge Scotting concluded that WGA had a "non-existent" safety system for Mr Cullen's work, had shown a “blatant disregard of its safety obligations” and that its “level of moral culpability for the offence was high”. He found WGA guilty of breaching s 19(1) and 32 of the WHS Act, imposing a penalty of $1 million and $50,460 in prosecution costs.Previously, the largest fine for a breach of the WHS Act in NSW was $500,000. The fine was issued to Ultra Group Pty Ltd in November 2014 for a similar incident in which a worker suffered an electric shock when he contacted power lines while placing reinforcing steel rods into a block wall at a construction site.The WGA case highlights a trend towards higher penalties for workplace health and safety offences in many Australian jurisdictions.Should MBA members have any further enquiries please do not hesitate to contact the Association’s Safety Department Sydney Office on 02 8586 3555.
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02 8586 3555