Prosecution Details

[1] Being an employer, treated its employee less favourably than it otherwise would, for the substantial reason that that employee made a complaint in relation to safety to his employer.

[2] Being an employer, failed so far as was practicable to provide and maintain a working environment in which its employees were not exposed to hazards and in particular failed to provide and maintain a system of work such that, so far as was practicable, its employees were not exposed to hazards.

[3] Being a main contractor at a workplace where there was a scaffold from which a person or thing could fall more than 4 metres failed to ensure that the scaffold was inspected and tagged by a competent person before the scaffold was used.

The defendant is a company that was constructing multi-storey residential units in Scarborough.

An employee of the defendant was employed as a scaffolder and labourer. In order to erect scaffolding from which a person or thing could fall 4 or more metres a person must have a certificate of competency, which the employee held. On 27 July 2000 the employee was erecting scaffolding from which a person or thing could fall 4 or more metres and he was being assisted by the site foreman who was engaged by the defendant. The site foreman did not hold a certificate of competency for erecting scaffolding.

The site foreman was directing the employee to erect the scaffolding in a manner that the employee considered to be unsafe. The employee expressed his concerns about the safety to the site foreman. The employee was told by the site foreman to leave if he was not prepared to erect the scaffolding the way he wanted it done. The site foreman suggested that the employee contact a director of the defendant to see if he could continue on the job as a labourer. The employee contacted the director and again raised his concerns about the safety issue. The director told him there was no work for him if he could not work "in harmony" with the site foreman.

The site foreman continued to erect the scaffolding once the employee left the site without the supervision of a certified scaffolder. The scaffolding was inspected the next day by a WorkSafe Inspector and found to be in an extremely unsafe condition.

The situation above applied to the charge under section 56(1)(d).

On 28 July 2000 a WorkSafe Inspector observed a number of deficiences in the system of work used to construct the units such as no guardrail on one balcony which was 3 metres above ground level; guardrails that were not securely fitted on one balcony which was 3 metres above ground level; three bricklayers were working on units near open edges that were 5.6 metres above ground level; scaffolding to a number of units were unsafe in that the standards (vertical tubes) were not tied and braced safely, the platform had some guardrails missing and large gaps in the platform where persons could easily fall 5.6 metres to the ground and one unit had two holes in the concrete slab which were each loosely covered with a piece of 19mm plywood. These deficiences are those which give rise to the offence of failing to provide a safe system of work pursuant to section 19(1)(a).

Whilst inspecting the site the WorkSafe Inspector observed that the scaffolding from which a person or thing could fall more than 4 metres did not display tags as required by regulation 3.72.

The matter was heard before Mr Cicchini SM. In his Reasons for Decisions Mr Cicchini SM stated, in regards to charge [1], that "Mr Bellamy was dismissed because he was not prepared to carry out the work which would contravene the standards" (Australian Standards) and "that he made a complaint to his employer about safety".

The Magistrates findings in regards to charges [2] and [3] was that "it is essential to maintaining a safe system that they [scaffolding] are checked on to ensure compliance. That did not occur due to the particular exigencies then existing. Consequently employees were exposed to obvious hazards."

The defendant pleaded not guilty to all three charges.