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Prosecution Details

Offender Mark Thomas Withers

Charges

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Charge Charge Number Offence Date Date Convicted Regulation Section Penalty Provision Penalty Imposed Date Sentenced
1 ES188/2021 10 March 2020 24th May 2021 6.2(1) 1.15(2)(a) $2,250.00 24th May 2021
2 ES185/2021 10 March 2020 24th May 2021 3A(4)(a)(i) $0.00 24th May 2021
Description of Breach(es)

Charge 1 – ES185/2021

Being a Director of MT Sheds (WA) Pty Ltd (a body corporate) when MT Sheds (WA) Pty Ltd was guilty of an offence under section 19A(1) of the Occupational Safety and Health Act 1984 and that offence was attributable to the neglect of the Accused; and/or the Accused consented to the acts or omissions to which section 18A(2)(a)(ii) of the Occupational Safety and Health Act 1984 applied that were proven against MT Sheds (WA) Pty Ltd, in circumstances where the Accused knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty was owed, but acted or failed to act in disregard of that likelihood.

Charge 2 – ES188/2021

The Accused performed High Risk Work of a class, namely Crane and hoist operation, non-slewing mobile crane, without being the holder of the appropriate class of High Risk Work Licence.

Background Details

Background

MT Sheds (WA) Pty Ltd (MT Sheds) was a commercial shed / warehouse fabrication and construction business supplying predominantly chemical storage and machinery sheds to the commercial and agricultural sectors. MT Sheds ceased trading soon after the offence date.

MT Sheds operated a fabrication workshop, located in Esperance, involved in the manufacture and supply of structural steel components required for the design and construction of custom built sheds and warehouses.

MT Sheds designed, fabricated, supplied and constructed a range of structures from sheds consisting of mainly structural steel components and cladding, to larger warehouses that incorporated concrete floors and concrete walls erected via the tilt-up method of construction. About 70% of MT Shed’s work was fabricating sheds for erection, and about 30% of the work was erecting the sheds.

MT Sheds had two directors, Mark Withers and his defacto partner.  Mr Withers is a registered builder, has almost 30 years’ experience working in the construction field, and had been constructing and erecting large steel sheds to house farm machinery for 20 years.

Mark Withers holds high risk work licenses for dogging, basic rigging, and operating boom-type elevating work platforms with a boom length of 11 metres or greater.

In 2008 Mark Withers successfully completed the construction skills training course MNMG237A Working Safely at Heights provided by the registered training organisation, Construction Skills Training Centre.

For larger projects, MT Sheds operated as the main contractor engaging subcontractors to carry out services such as plumbing, electrical, cranage, and concrete construction.

For smaller projects that mainly involved the erection of structural steel components and cladding, MT Sheds director Mark Withers carried out this work personally with the assistance of MT Sheds employees and the use of a non-slewing mobile crane and a boom-type elevating work platform that he owns and operates.

For regional construction work, Mark Withers transported the MT Sheds employees in his own vehicle accompanied by a tool trailer containing the necessary tools and consumables required.

At the time of the accident, MT Sheds had two employees. 

At the time of the accident, Fraser Pinchin was a 21 year old heavy fabrication apprentice in the fourth year of his apprenticeship. Fraser had been a full time employee of MT Sheds for more than three years and undertook an unofficial role of leading hand in both the fabrication and the construction work associated with the business.

Jake Williams had commenced his employment with MT Sheds approximately two months before the accident.

Jake Williams did not hold a construction induction training certificate, colloquially known as a ‘white card’.

It is an offence under regulation 3.136 of the Occupational Safety and Health Regulations 1996 (Regulations) for an employer to permit an employee to do construction work unless that employee holds a white card.

The construction industry training course necessary to attain a white card takes half a day and can be done online.

At the time of the accident, both Fraser Pinchin and Mark Withers held a white card.

Description of the work being carried out at the workplace

Approximately 12 months prior to the accident date, MT Sheds was approached by a farmer about constructing a new shed on his property. Mark Withers was working nearby so went with the farmer look at the area in which the new shed would be constructed (the “Workplace"). 

Mark Withers recommended a partially cladded tropical awning shed with a width of 24 metres and a length of 12 metres. 

Prior to leaving the site, Mark Withers demonstrated to the farmer the layout of the proposed shed with steel stakes inserted in the ground marking proposed column locations. Upon acceptance of the proposed layout, Mark Withers provided the farmer with a verbal quote for the supply and erection of the shed.

In the months prior to the accident, MT Sheds manufactured the structural steel components of the shed which were later collected from the MT Sheds workshop and transported to the Workplace by way of a flatbed truck.

In the days before the accident, Mark Withers, Fraser Pinchin and Jake Williams attended the Workplace and installed a series of concrete footings, with the assistance of a concrete truck, in order to support the shed’s structure. These footings were left to cure before the erection of the shed commenced.

Description of the accident

On Tuesday 10 March 2020, Mark Withers, Fraser Pinchin and Jake Williams travelled to the Workplace in the same vehicle, and began erecting the structural steel components of the shed. The weather appeared to be good that day. It was the practice of MT Sheds not to carry out construction work at heights on days with inclement weather.

Mark Withers operated the non-slewing mobile crane while Fraser Pinchin and Jake Williams applied slinging techniques to loads and operated a Snorkel A46JRT boom-type elevating work platform (“EWP”) in order to access and secure steel components into position while suspended by the crane.

It is an offence pursuant to regulation 6.2(3) of the Regulations for an employer to direct or allow a worker to do high risk work unless that worker holds a high risk work licence for that class of work. Many of the tasks carried out by the MT Sheds personnel in their day to day work required a high risk work licence.

Dogging work is a prescribed class of high risk work and was conducted by both Jake Williams and Fraser Pinchin in order to apply slinging techniques for the purposes of lifting loads by crane. Neither Jake Williams nor Fraser Pinchin held a high risk work licence for dogging.

Basic rigging work is another prescribed class of high risk work and was carried out by both Jake Williams and Fraser Pinchin in order to secure steel members of the shed’s structure while being held in position by a crane. Neither Jake Williams nor Fraser Pinchin held a high risk work licence for basic rigging.

The operation of a boom-type elevating work platform with a boom length of greater than 11 metres is a further class of high risk work that was conducted by Jake Williams and Fraser Pinchin on the accident day. Neither Jake Williams nor Fraser Pinchin held a high risk work licence for the operation of a boom-type elevating work platform with a boom length of greater than 11 metres.

It is an offence pursuant to regulation 6.2(1) for a person to perform high risk work of a particular class unless that person holds a high risk work licence for that class of work.

The use of a non-slewing mobile crane with a capacity of more than 3 tonnes, such as the non-slewing mobile crane operated by Mark Withers, including on the accident day, is a prescribed class of high risk work.

Mark Withers did not hold, and had never previously held, a high risk work licence for crane and hoist operation, non-slewing mobile crane, or indeed any class of crane operation.

Following receipt of a WorkSafe improvement notice on 16 March 2020, Mark Withers submitted a high risk work licence application for crane and hoist operation, non-slewing mobile crane, to WorkSafe after being deemed competent on 24 April 2020.

Once the steel frame of the shed had been erected, along with wall cladding installed along one of the shed walls, the remaining construction work involved the installation of roof sheeting, flashing and guttering.

The height of the front face apex of the roof of the shed was approximately 9.23 metres. The height of the roof at the side gutter location was approximately 6.87 metres.

One side of the sheds roof was sheeted by temporarily fixing three roof sheets to the roof structure in order to provide a platform for the roofing work. Fraser Pinchin and Jake Williams accessed the platform by exiting the basket of the EWP and received the remaining pack of approximately 12 metre long roof sheets that had been lifted to the platform by crane.

Regulation 4.54.(4) of the Regulations makes it an offence for any responsible person at a workplace to fail to ensure that an EWP is maintained, inspected and operated in accordance with the written instructions developed at the time of manufacture by the person who designed or manufactured the EWP.

The operator manual for the Snorkel A46JRT EWP owned by and being used by MT Sheds on the day of the accident prohibits the stepping from the EWP onto buildings or other structures while in the raised position. The manual also recommends the use of fall prevention equipment when operating the EWP.

Jake Williams and Fraser Pinchin proceeded to sheet the remaining side of the roof by placing each roof sheet out in front of them in order to fix the leading edge of the previously laid sheet to the trailing edge of the following sheet, an installation process known in the industry as the leading edge method.

While Fraser Pinchin and Jake Williams where installing the roof sheeting, Mark Withers operated the EWP in order to access and secure the outer edges of the roof sheets.

The installation of roof sheeting was intended to continue in the same fashion for the adjacent side of the sheds roof. Fraser Pinchin and Jake Williams took three sheets from an opened pack of roof sheets and operated the EWP in order to construct the initial roof sheet platform.

Once the remaining pack of roof sheets had been slung and suspended by the crane, Jake Williams and Fraser Pinchin accessed the sheeted platform by exiting the basket of the EWP and receiving the pack.

At this time, Fraser Pinchin signalled to Mark Withers that the load had been disconnected from the crane’s hook, allowing Mark Withers to reverse the crane away. Fraser Pinchin had un-chocked the lifting sling from the pack of roof sheets when he saw, through the un-sheeted roof structure before him, a sudden volume of dust pick up from a willy-willy that was coming across the shed. The sudden wind gust picked up the top roof sheet from the pack and pushed Fraser Pinchin and Jake Williams from the front face of the roof’s edge.

Fraser Pinchin fell approximately 7 metres from the roof’s edge near the gutter line. Jake Williams fell approximately 9 metres from near the centre line, or apex, of the roof’s edge.

Jake Williams suffered fatal injuries as a result of the fall.

Fraser Pinchin suffered the following injuries as a result of the fall:

a.             Complex pelvic injury with fracture of the pelvic ring;

b.             Fracture of the right acetabulum;

c.             Fracture of the left femoral neck;

d.             Fracture of the right distal radius; and

e.             Multiple rib fractures.

There was no fall injury prevention system in place at the Workplace on the day of the accident.

For instance, neither Jake Williams nor Fraser Pinchin had been wearing a safety harness on the day of the accident.

MT Sheds had safety harnesses and associated equipment such as static lines available on the day of the accident. Those materials were located at the MT Sheds workshop in Esperance.

An MT Sheds induction form provided that, when working at heights “on a scaffold, except a 4 metre mobile, when required wear safety harness, which must be secured to a safe spot eg. Static line.”

Another MT Sheds document, entitled “Conduct and General Conditions”, provided that employees were required to undertake structured training and development designed to enhance job competency and safety and health awareness.

The MT Sheds employees working on 10 March 2020 had never used safety harnesses when working at heights. Fraser Pinchin had never used a safety harness in the almost four years that he had been working for MT Sheds.

MT Sheds had not provided any training to Fraser Pinchin or Jake Williams in relation to working at heights or in the use of safe working at heights equipment.

At the time of the accident Fraser Pinchin did not know what to hook a safety harness to if he was to wear one.

Regulation 3.55 of the Regulations makes it an offence for an employer such as MT Sheds to fail to ensure that edge protection that complies with the prescribed requirements is provided and kept in place whenever there is a risk that a person could fall 3 or more metres from an edge such as the edge of the shed roof that MT Sheds was constructing at the Workplace.

There was no edge protection in place at the Workplace on the day of the accident.

Immediately following the fall, Mark Withers rang 000 and asked for an ambulance and then started CPR on Jake Williams. At this time, Fraser Pinchin was conscious, and Mark Withers was able to speak with him.

While Mark Withers was performing CPR on Jake Williams, he hailed down a farmworker and asked him to call for additional help.




Outcome Summary

Mark Withers plead guilty to both charges at first opportunity and was convicted.

In respect of charge 1, the Magistrate imposed a partially suspended term of imprisonment. The Magistrate reduced the total length of term from an initial starting point of 3 years and 6 months down to 2 years and 2 months in recognition of the guilty plea and other mitigating factors that included Mr Withers’ significant health issues. The Magistrate ordered 8 months of the term be served immediately, with the remaining 18 months to be suspended for a period of 12 months.

In respect of charge 2, the Magistrate reduced the fine from initial starting points of $3,000 down to $2,250 in recognition of the guilty plea and other mitigating factors.

Court Magistrates Court of Western Australia - Esperance
Costs TBA

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