By Gaby Grammeno Contributor

The injured man was employed by a labour hire business providing workers to a construction company carrying out roofing renovations for the principal contractor for an aged care facility in an Adelaide suburb.

There were two skylights on the roof, but the roofing contractor’s risk assessment made no mention of them – the initial risk assessment was made during the time of COVID protocols and the building was occupied, so the roofer’s representative did not go inside, and couldn’t see the skylights from ground level.

They were clearly visible in a publicly available Google image of the site, but this wasn’t checked.

The skylights were also not shown in the roofing design plans provided by the principal contractor, though they were included in ceiling plans provided later, which the roofer considered it had no need to view and consequently didn’t download.

On a second site visit, the roofer’s representatives viewed the roof from a plant platform accessed through the ceiling space. The skylights would have been visible from there, but they were not incorporated into the risk assessment or the associated Safe Work Method Statement. 

The roofer’s leading hand saw the skylights for the first time when he got up on the roof to start work. He assumed the skylight was trafficable ‘because it was in a commercial dwelling’, but he told the two labour hire workers not to go near the skylight or walk on it.

On the day of the incident, workers were removing the old roof tiles to replace them with Colorbond sheeting. One of the labour hire workers – who was not wearing a safety harness – was carrying tiles down to the edge of the roof and putting them on a conveyor to be moved to ground level. 

Though the task did not require him to go near the skylights, he fell through one and hit the floor 4.6 metres below, suffering serious concussion, a fractured shoulder blade, fractures to L3 and L4 vertebrae near the base of his spine, a collapsed lung and other internal injuries.

SafeWorkSA charged both the roofing contractor and the labour hire company with breach of WHS laws, and both pleaded guilty.

The roofer had failed to identify and adequately manage the risk posed by the skylights, thereby exposing an individual to a risk of death or serious injury (an offence with a maximum fine of $1,500,000). 

The labour hire company had failed to consult, coordinate or cooperate with the roofing contractor on the health and safety duty that they both had in relation to the labour hire workers (maximum fine $100,000).

 

In the South Australian Employment Tribunal

Deputy President Katherine Eaton observed that fragile roof surfaces such as fibreglass or cement sheeting, rusty metal roofs and skylights are well known to pose a risk of falls for people on a roof, as the Code of Practice for Managing the risk of falls at workplaces specifically points out.

The roofer submitted that the risks were not obvious because the injured worker’s task didn’t involve proximity to the skylight, the company was not aware of incidents involving skylights of that design, the leading hand had assumed the skylight was trafficable, and it was not flush with the roof.

In refuting each of these arguments, Deputy President Eaton noted that deliberately stepping on a skylight is not the only way a worker could fall through it. This suggestion ‘seems to ignore the risk that human beings may lapse in their attention to their surroundings, become distracted, step backwards, trip or lose balance only to inadvertently step onto one of these skylights, which were sufficiently close to the level of the roof that no significant step up would be required’.

She preferred the evidence given on behalf of the injured worker, that the leading hand recognised the risk of the skylights because he told the workers not to go near them. However, the risk was not effectively managed, as a verbal instruction alone was not enough.

In sentencing, Deputy President Eaton noted that both the roofer and the labour hire company had shown genuine remorse, and the roofer provided significant support to the injured man.

The roofing company also made a lot of improvements to prevent similar incidents in future, including:

  • amending their WHS policies and procedures
  • incorporating photos, diagrams and links to videos explaining safety procedures in SWMS and having them reviewed and externally audited 
  • checking labour hire workers’ qualifications rather than relying on the contractor to do s
  • increasing site supervisor positions from 2 to 25 and creating a dedicated full time WHS Coordinator position to regularly inspect and monitor worksites
  • establishing a text notification system to quickly disseminate important safety updates to all workers including labour hire personnel
  • providing training and induction for all labour hire workers, including specific instruction in tasks and their hazards, with translated safety information and instructions for workers with limited proficiency in English
  • conducting joint safety audits and monthly briefings with contractors
  • participating in a Return to Work SA audit.

The roofing contractor also made comprehensive improvements to its WHS management system.

The Deputy President fined the roofing contractor $90,000 and the labour hire company $18,000, after applying a 40% discount in view of their early guilty pleas and improved safety systems.

 

What it means for employers

Skylights are notorious for the risk they pose to people working on roofs. The case highlights the need for labour hire companies to take their own active approach to ensuring the safety of their employees at whatever worksite they are sent to, rather than relying on host employers to ensure a safe working environment.

 

Read the decision

Farrell v SA Construct Pty Ltd, Brother Hu Pty Ltd [2024] SAET 104 (20 November 2024)