1 min read

Subcontractor fails to take known steps to control risk

The Case

SafeWork NSW v Mercon Group Pty Ltd (2021)

Mercon Group Pty Limited (Mercon) operates a business in demolition and excavation. Growthbuilt Pty Limited (Growthbuilt) engaged Mercon as a subcontractor to undertake demolition work, including removing several concrete slabs to create space for the installation of stairways and elevators.

Mercon provided Growthbuilt with an initial quote, which included the provision of ‘catch decks’ to be used in the course of cutting the concrete slabs to minimise the risks associated with concrete falling during cutting or after it was cut. The quote was not accepted by Growthbuilt. Mercon undertook the work without the catch decks.

On 3 February 2017, three employees of Mercon were in the process of cutting one of the concrete slabs, when the slab on which they were working collapsed beneath them and two of the employees fell approximately 2.85 metres to the ground below, sustaining serious injuries. The third employee began to fall as well but his fall was arrested by his clothing becoming caught on a piece of protruding metal. He was not injured.

The Verdict

The steps that Mercon could have implemented to eliminate the risk were well known to it and had been set out in its initial quote. However, Mercon failed to conduct the work in a safe manner by not installing catch decks.

Mercon accepted that it should have insisted on its proposed use of catch decks or found another way to do the work. Mercon pleaded guilty to breaching sections 19 and 32 of the Work Health and Safety Act 2011 (NSW) in failing to comply with its primary duty of care and exposing workers to a risk of death or serious injury.

Mercon was convicted and ordered to pay a fine of $90,000, following a 25% reduction for entering a guilty plea. It was also ordered to pay the prosecutor’s costs in the amount of $42,000.

The Lessons

This case highlights that every employer has duties to ensure relevant control measures are implemented even if the cost of those measures is borne by the employer directly (rather than the business commissioning the work).

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.

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