In the 2009 decision of Spinks v M Dekker Constructions Pty Ltd,
the South Australian Magistrates Court reduced a penalty imposed on
an employer from $72,000.00 to $20,000.00 in light of the
employer's financial hardship.
The defendant, Dekker Constructions Pty Ltd (Dekker) was
performing building and construction work for the Ahrens Group.
Dekker was contracted by the Ahrens Group to construct a warehouse
and, at the time of the event, was in the process of lifting roof
panels into place. On 2 March 2006, a section of the roof steel
structure collapsed injuring 4 workers.
The technique used by Dekker for lifting the roof panel sections
involved using cranes operated by Nicks Crane Services. The roof
sections would be lowered onto columns by two cranes and the
employees of Dekker would go up in scissor lifts and bolt the roof
sections to the columns. One crane would then release its load and
move away, and the second crane would remain without releasing its
load until employees of Dekker had tied on bracing purlins,
securing the newly erected roof structure to the existing
construction. Once the purlins had been tied back and braced, the
second crane would release its load and move away to get ready for
the next lift.
However, on the day of the accident, after the first crane
unhooked and moved away, the second crane remained holding the load
in an awkward position. Due to the position of the second forklift,
the scissor lifts were not able to get around the crane to go up
and tie the bracing purlins. Consequently, the second crane
unhooked and released its load so that the Dekker employees could
go up and tie the bracing purlins. However, a gust of wind caused
the frame to move unexpectedly, resulting in a section of the roof
which had just been installed, to collapse.
After the incident, an engineer was appointed to investigate the
cause of the accident. The primary cause of the incident was found
to be a lack of bracing. It was also accepted that Dekker's
procedure was unsafe because it did not cater for problems which
might arise during the lift. The Court also found that whilst a Job
Safety Analysis (JSA) had been performed by a Director of Dekker on
the morning of the accident, the JSA did not provide any clear
direction to the workers as to when cranes should release their
In sentencing Dekker for a breaches of the Occupational Health
and Safety and Welfare Act 1986, the Court took into consideration
the company's early plea of guilty, the employer's safety
record (including the fact that they had no prior convictions and
only two relatively small workers compensation claims), and the
remorse shown by the employer. The Court also noted that following
the accident, Dekker implemented additional measures to prevent the
incident occurring again, including the employment of another
person to act as second in charge and the creation of safe work
methods for every job undertaken. The employer also revised its JSA
and each employee was required to sign and indicate that they have
read and understood the JSA before commencing work.
The Court took into account the enormous financial strain on
Dekker's business resulting from the event. Specifically,
evidence submitted to the Court was that Dekker's financial
position was poor, having traded at a loss during the financial
year ending 30 June 2008, and that there were real doubts about the
company's ongoing financial viability.
Out of a possible penalty of $100,000.00, the court imposed a
fine of $90,000.00 discounting it by 20% having regard to the early
plea of guilty, resulting in an actual fine of $72,000.00. However,
the Court ordered payment of a lesser amount, namely $20,000.00
after considering the company's dire financial status and the
provisions of the Criminal Law (Sentencing) Act 1988.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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