No financial penalty sufficient: Builder Truslan Constructions fined $450,000 over workplace death

A builder fined $450,000 for an on-site death has been slammed for “blatant disregard for safety”.

CFMEU secretary Dave Noonan says the financial penalty will “never be sufficient: A man has lost his life and a family has been very badly hurt because a builder put profit ahead of safety,” he said. Picture: Kelly Barnes/The Australian

Sydney builder Truslan Constructions has been fined $450,000 following the gruesome death of an experienced carpenter, with a court finding the company showed a “blatant disregard for the safety of workers”.

New South Wales District Court judge Wendy Strathdee said it was “most concerning” a construction union organiser visited the Ryde building site 11 days prior to the death of father and husband Iremar Da Silva and issued notices which specifically identified risks of workers

falling from height.

Mr Da Silva, who had 25 years’ experience as a carpenter, was working on a Level 2 deck on October 25, 2016. The deck perimeter was protected by a permanent scaffold but there were significant gaps left between the edge of the deck and the scaffold.

There were no handrails protecting the gaps.

Mr Da Silva was laying plywood on the partially-constructed deck when he fell down more than three metres onto a metal starter bar with a yellow bar cap that was protruding from the floor below.

He was fatally injured.

Judge Strathdee said the nature of the risk to Mr Da Silva was foreseeable and the measures that could have been taken to control or eliminate the risk were not difficult or expensive.

“The risk was also obvious, glaringly so,’’ she said. “There were no guard rails or edge protection, and the work was being performed at height.

“It seems impossible to me, that even a perfunctory inspection and risk assessment would not have revealed this risk.”

Sitao “Tom” Zhang, the director of Truslan Constructions, gave “scant regard” to the notices issued by the Construction, Forestry, Maritime, Mining and Energy Union which specifically identified risks of workers falling from height.

Judge Strathdee said Mr Zhang relied almost exclusively on others to address the issues and made no independent checks to ensure that appropriate measures were taken.

“This to my mind shows a blatant disregard for the safety of workers as he did precious little to eliminate or at last minimise the risks to workers, such as Mr Da Silva,’’ she said.

Truslan Constructions pleaded guilty to an offence contrary to the Work Health and Safety Act which carries a maximum penalty of $1.5 million. The company was fined $600,000 which was reduced by 25 per cent to $450,000 due to the guilty plea.

‘Enormous loss’

Mr Da Silva’s death occurred on the same day as the death of four people at the Dreamworld theme park. Judge Strathdee said Mr Da Silva’s widow, Linda Moussa, read a victim impact statement in court that was “distressing and heartbreaking to hear”.

“The loss that Ms Moussa detailed on behalf of herself and her son is enormous,’’ she said. “The impact of this incident on the lives of many people is significant.”

CFMEU construction division national secretary Dave Noonan said Mr Da Silva’s death was an “absolute tragedy” and the financial penalty would never be sufficient.

“A man has lost his life and a family has been very badly hurt because a builder put profit ahead of safety,’’ he said.

“These are the sort of circumstances where industrial manslaughter needs to be taken into account when you have got a situation where the risks are clearly pointed out and the builder continues to operate unsafely.”

“We think there needs to be a prosecution. If you had a similar set of circumstances in a motor vehicle accident, it would be a pretty sure bet there would be a criminal prosecution and there ought to be in these sort of cases. As it is, the union gets fined more for a

strike.”

He said the case “reflected the state of the industry that the union saw all too often on jobs where lip service is paid to safety and profits are more important to builders than providing a safe workplace for the people who put the buildings up”.

“It also reflected a reality which is rarely portrayed in the media that CFMEU officials, day in day out are the people trying to improve safety on site and in this case the organiser intervened, pointed out the very real problems at the site but the company didn’t take the

steps they should have,’’ he said.