Prosecution Details

16 x Charges

Being the main contractor at a workplace, failed to ensure that a hole or opening (other than a lift well, stairwell or vehicle inspection pit) with dimensions of more than 200mm x 200mm but less than 2 metres x 2 metres in a concrete floor or a building or structure at the workplace had wire mesh that meets the requirements of regulation 3.54(2) of the Occupational Safety and Health Regulations 1996, where such mesh was practicable.

Background

The Accused is a building company. In January 2015 the Accused was contracted to construct a high-rise building at 189 Adelaide Terrace, East Perth, to be known as Concerto (Concerto).  Concerto was to be a 38-storey residential apartment complex, including 36 liveable floors, one commercial tenancy, and six basement floors.

The Accused was the main contractor for Concerto. At all material times Concerto was a workplace, for the purposes of the Occupational Safety and Health Regulations 1996 (the Regulations).

The floors of Concerto were a particular type of concrete floor, made using the proprietary BubbleDeck system.  The concrete panels that would form the floors of Concerto were partially pre-formed off site, at the Accused's own premises.  The partially pre-formed panels, known as BubbleDeck 'biscuits', including the reinforcing steel, essentially constituted the base of what would ultimately be the full floor slab.

The various BubbleDeck biscuits for each floor were landed on site at Concerto in a designated arrangement, and concrete was then poured into them to bring them up to the final floor slab height.

Penetrations in concrete floors

Each floor had certain openings, or penetrations, in it, to allow services such as electrical risers and garbage chutes to run up through the building.

Regulation 3.54(1)(b) of the Regulations applied to those penetrations. That regulation required the Accused, as the main contractor at the workplace, to ensure that each such penetration:

         i.            had, if practicable, wire mesh that met requirements prescribed in regulation 3.54(2); and

       ii.            was covered with a material that met requirements prescribed in regulation 3.54(1)(b)(ii)(I)-(II).

The purpose of a cover is to stop people or items falling into a penetration.

However, covers may on occasion be removed to allow work to be done through or around the penetration, such as bringing up services. This is permitted by regulation 3.54(3)(b)(ii).

However, removing the cover, even temporarily, makes it possible for a person to fall into the penetration. Further, it is possible for workers on construction sites to fail to replace covers and fix them to the floor immediately following the completion of service installation work.

The hazard posed by an uncovered penetration is addressed by having compliant mesh through the penetration, embedded into the surrounding concrete.

Being embedded, mesh cannot be easily removed. If there is a need to bring a service up through the penetration, regulation 3.54(3)(a)(ii) permits the cutting out of the minimum portion of the mesh required to allow the service through.

The Accused chose not to mesh any penetrations at Concerto.

The orthodox method of meshing

Of the 16 penetrations on a representative floor at Concerto, at least the following four would have been simple and inexpensive to mesh using orthodox building practices (which are described below):

         i.            two cable tray shafts (HSD 37.125 and 37.132);

       ii.            one bin chute shaft (HSD 37.131); and

      iii.            one electrical bus duct shaft (HSD 37.124)

Each of these four penetrations was wholly contained within a single biscuit (rather than being formed by abutting biscuits, for example).

Penetration HSD 37.132 (measuring 350 mm by 550 mm) is the opening the direct subject of each of the 16 charges. However, it is representative of at least the four penetrations identified above on each floor.

Each of the 16 charges charge relates to one floor at Concerto, between levels 21 and 36, inclusively.

An orthodox and inexpensive method for embedding mesh across such penetrations in concrete floors of the type used by the Accused would have been as follows.

First, the biscuit would have been landed in position on site, on top of false work propping. There would be a sheet of formwork underneath any penetrations to address the immediate risk of a fall.

Pieces of timber would then be laid around the penetration as the first stage of formwork that would maintain the form of the penetration up to final slab height.

Next, a sheet of mesh would be laid across the penetration, sufficiently overlapping the biscuit itself to allow the mesh to be embedded within the surrounding concrete to be poured, in compliance with the requirements of regulation 3.54(2) of the Regulations.

Further timber would then be laid on top of the mesh to complete the formwork around the perimeter of the penetration.

Finally, concrete would be poured onto the biscuit. Once the concrete had hardened, the mesh would thereby be embedded into the concrete floor to comply with regulation 3.54(1)(b)(i) of the Regulations. The timber formwork around the perimeter of the penetration would prevent concrete spilling through the penetration. Once set, the formwork could be removed, leaving the completed slab.

A cover could then be affixed to the slab to comply with regulation 3.54(1)(b)(ii) of the Regulations, and the formwork beneath the penetration could be stripped away.

The Accused's system

In the past, the Accused had used a similar method to the orthodox method described above. Since adopting the BubbleDeck system of construction in approximately 2010, however, and including during the construction of Concerto, the Accused had stopped doing so.

Instead, the Accused developed its own system that did not involve meshing at all, which the Accused refers to as the 'Hanssen Penetration System' (HPS).

The HPS incorporated a metal barrier, which the Accused refers to as an 'upstand', installed around the internal perimeter of a penetration. This upstand was affixed to the biscuit at the time of manufacture at the Accused's premises, before the biscuit was landed on site.  In some, but not all, cases, this allowed a cover to be affixed across a penetration prior to delivery to site.

The upstand formed a 'box' around the internal perimeter of the penetration and avoided the need to build formwork around the perimeter of the penetration on site to stop poured concrete spilling down to lower levels.

However, being a solid barrier around the internal edges of the full height of the penetration, it also precluded the embedment of mesh into the concrete that would form the floor around the penetration. In other words, it precluded compliance with regulation 3.54(1)(b)(i) of the Regulations.

The Accused did have procedures for the penetrations to be covered, with reference to regulation 3.54(1)(b)(ii) of the Regulations.

The Accused could have used the orthodox method to enable the meshing and covering of at least the four penetrations for each floor.

The sole director of the Accused (the director), participated in a voluntary interview, and the Accused otherwise cooperated with WorkSafe's investigation.

In his interview, the director acknowledged that the purpose of mesh was to stop a fall, but explained that the reason that the Accused ceased to use the orthodox method was that he refused to comply with regulation 3.54(1)(b)(i) of the Regulations because he considered it unsafe. In particular, he considered that installing timber formwork around a penetration, and cutting out mesh in whole or in part to allow services through, was unnecessarily dangerous.

The director explained that the Accused was not interested in exploring whether a method could be developed that would allow mesh to be laid through the metal barrier during off-site construction, such that it could be embedded in the slab when concrete was poured onto the biscuit on site.

The director described such a method as 'sheer stupidity', having 'zero purpose', and said that he didn't want to discuss it 'because it's bullshit'.

The Accused has not developed such a method.

As outlined below, the Accused has continued to knowingly fail to comply with regulation 3.54(1)(b)(i) in its construction works since the completion of Concerto.

Non-compliance at Concerto

On 14 October 2016 a WorkSafe inspector issued an improvement notice to the Accused requiring compliance with regulation 3.54(1)(b)(i) in relation to existing penetrations at Concerto. The inspector further informed the director that the Accused would need to comply with regulation 3.54(1)(b)(i) in relation to penetrations in floors yet to be constructed.

The improvement notice was cancelled on 14 December 2016, on the basis that it was not possible to retrospectively embed mesh into floors that had already been poured as at 14 October 2016.

The 16 charges the subject of this prosecution relate to floors that were yet to be poured as at that date.

The Accused separately applied for an exemption from compliance with regulation 3.54(1)(b) at Concerto and 'all future projects' by the Accused. The WorkSafe Commissioner refused the exemption in April 2017. By that date all floors at Concerto had been poured.

The Accused sought review of the WorkSafe Commissioner's decision in the Occupational Safety and Health Tribunal (OSH Tribunal).

The OSH Tribunal delivered its decision in September 2017 (in [2017] WAIRC 00823), finding that:

         i.            exemption from compliance with regulation 3.54(1)(b) at Concerto was meaningless, as all floors had been completed; and

       ii.            exemption from compliance at 'all future projects' by the Accused should not be granted, as:

(a) the use of a cover only, and not mesh, did not constitute 'substantial compliance' with regulation 3.54(1)(b);

(b) the use of mesh was generally not impracticable; and

(c) the use of mesh was not unnecessary.

Ongoing non-compliance

In April, July and August 2018 WorkSafe inspectors issued improvement notices to the Accused requiring compliance with regulation 3.54(1)(b)(i) in relation to penetrations in floors yet to be poured at three further construction sites. The Accused had instructed its workers not to comply with regulation 3.54(1)(b)(i) at those sites.

Each of those improvement notices was affirmed by WorkSafe and subsequently the subject of an application by the Accused for review by the OSH Tribunal. The Accused later also applied directly to the OSH Tribunal for exemptions from compliance with regulation 3.54(1)(b) in relation to each of those three sites.

By the time those proceedings came to be heard, all floors had been poured on each of the three sites. There was again therefore no utility in reviewing the improvement notices or considering exemptions for those sites.

In February 2019 a WorkSafe inspector issued an improvement notice to the Accused requiring compliance with regulation 3.54(1)(b)(i) in relation to a further site. There was a hearing before the OSH Tribunal in relation to that improvement notice and an application for exemption from compliance with regulation 3.54(1)(b) in relation to that site.

In those proceedings, the Accused did not submit that compliance with regulation 3.54(1)(b)(i) was impracticable. Rather, the Accused submitted that its own system, which did not involve meshing penetrations, either:

         i.            constituted substantial compliance with regulation 3.54(1)(b); or

       ii.            was as safe or safer than one which involved meshing, making compliance unnecessary.

On 28 February 2020 the OSH Tribunal delivered its decision in those proceedings ([2020] WAIRC 00141), relevantly:

         i.            affirming (in effect) the February 2019 improvement notice; and

       ii.            affirming the WorkSafe Commissioner's decision not to grant the Accused an exemption, on the bases that the Accused's system:

                         i.          did not constitute substantial compliance with regulation 3.54(1)(b); and

                        ii.          was not as safe or safer than one which involved meshing, making compliance not unnecessary.

In May 2020 WorkSafe inspectors identified further non-compliance with regulation 3.54(1)(b) by the Accused at a site in Rivervale.

Prior offences:

1. PE 60363/08 (convicted 27 March 2009; fined $20,000)

2. PE 60364/08 (convicted 27 March 2009; fined $20,000)

3. PE 35847/19 (convicted 11 October 2019; fined $47,000 globally)

4. PE 35848/19 (convicted 11 October 2019; fined $47,000 globally)

The accused pleaded guilty and was convicted on 10 June 2020. On 23 November 2020 the Magistrate fined the Accused a global fine of $60,000 and ordered costs of $5000.00.