street Sydney development

It took David Chandler a month to get the regulators to take some action on a construction site in Sydney that did not have edge protection or handrails and in his view was a danger to the public, a view that SafeWork NSW rejected in response to a query from The Fifth Estate.

UPDATE 18 2018: It is often said that the standard you are prepared to walk by is the standard you are willing to accept. Well that’s fine, but we are not the regulators.

The construction industry is in need of a regulatory compliance shake up. That shake up must start at the highest level. Governments must set the tone and support regulators by their actions and with sufficient resources to regulate. Governments have an obligation to act in the public interest and ignorance is not a defence as many politicians are now finding.

The above image is of a project under construction in Sydney.Construction had reached the stage in the images above and below where walking past and turning a blind eye was no longer an acceptable option. There was an obvious lack of safe construction methods on display. In particular an absence of edge protection or handrails.

This article could have pointed to any number of projects and areas of failed regulatory effectiveness. This article could have addressed shortcomings of the Building Professionals Board in NSW or a lack of interest by the Environmental Protection Authority in the huge spike in construction-generated waste.

In this instance the Agency is SafeWork NSW. When contacted about this project in August it took almost a week to generate any interest at all. An excuse of “a lack of resources” was offered by the manager.

Sydney development

Eventually, the following acknowledgement and action was reported: “Thank you for reporting the safety concerns to SafeWork NSW. An inspector was allocated the job at … Please be advised that a site visit was undertaken on 19.08.2017.”

No details of the inspection or the action instructed were available. There was some movement on the site towards addressing the risks to the public at the street frontage. However, that activity appeared to lack a clear safety consciousness, as the public continued to walk beneath the ongoing construction risk and subsequently scaffolding activity.

The public way continued to be an overhead obstacle course. Even when an external scaffold along the street frontage was started the public was exposed to ongoing falling debris risk. Regular ongoing reports were forwarded to SafeWork NSW, including images of the observed risks. A lack of care or ignorance about the legal obligations of the contractor performing the project to protect the public and ensure a safe workplace for construction workers seemed obvious and continuing.

sydney development stop sign

At the rear of the of the project work continued with little obvious care or compliance to the obligations under the SafeWork legislation. Despite a regular and recorded stream of concerns being conveyed about the prospective risk to the public and workers, to SafeWork NSW, the builder lumbered on with what, it seems, it can get away with.

The latest communication from the SafeWork officer proposed that if there were continuing concerns, I “should make a fresh complaint”.

The officer indicated no intent to return to the project otherwise. They were advised that no further complaint would be made by me – only continued reporting of observations on the state of safety risks. These would be on the record.

The public facade of the project is now much safer, however, the officer has not been able to confirm if the means of supporting the protruding structure are adequate.

When advised that there were many examples of similar safety non-compliances in the immediate proximity to this project, little interest was shown or even intent to at least investigate. The regulator is not performing.

[NOTE SafeWork NSW was contacted by The Fifth Estate and provided the following response: “SafeWork NSW received an enquiry about this site on 14 August 2017. We responded promptly, and issues identified at the site were dealt with appropriately and within required timeframes. SafeWork NSW can impose a range of compliance and enforcement measures for breaches of work health and safety legislation, including improvement notices and prohibition notices; penalty notices (fines); enforceable undertakings; and prosecution through the courts.”]

During the course of reporting this project, two construction workers were killed elsewhere and there was also a serious incident involving the public near Luna Park. In all instances senior WorkSafe management appeared in the media to attest to the agency’s commitment to safety. These attestations are hollow.

There is a clear lack of “walk-the-talk” evidence of any systemic strategy to lift industry safety standards. One might even get the impression that some contractors and developers can lean on these agencies to get off their back and stop disrupting their work flows. This situation is not confined to safety.

The most recent image of work progress and safety is below. These images are offensive to those contractors who conduct their projects responsibly and safely. The whole of the industry’s reputation is put in jeopardy and so are the lives of workers.

Decent contractors are sick of sharing the fallout when accidents happen on these projects. It is not only the industrial ramifications on those projects where unions hold sway. It is the cost of injury and insurance premiums shared by all.

sydney development property

And the impact of the images of construction that are conveyed to potential new industry entrants – at a time when skills shortages are increasing – is unacceptable. What promising young construction workers or their families would be encouraged to a career in an industry with such a mixed bag of risk exposures? It’s amazing that the politicians who drive by these types of projects do so either blindly or without any care whatsoever.

Should SafeWork NSW be minded, I have hundreds of similar images for this project and many others in proximity to this one. I wonder how the purchasers and occupants of these projects would feel if serious injury or death occurred and they subsequently had to live in the shadow of the carelessness that may have contributed.

UPDATE: 18 November 2017 – I went back this morning.Today it was worse;

  • Another floor, no handrails and deck goes higher,
  • Work below on floors with no external scaffold of handrails, no safety harnesses – just leaning over the edge to grind the concrete,
  • Only a few workers with construction hats or safety vests,
  • access lasers do not comply with the standards
  • But, thinks on the street frontage looks pretty good.

Despite what seemed like a reassurance from Worksafe NSW that their visit to this project on the 14th August was meaningful, it is now over three months later.

This case study could have been about an industry culture that displays carelessness and a lack of compliance. But its not. No-one can contract out of a duty of care.

Government agencies like Worksafe NSW and the Building Professionals Board cannot contract out of their public interest obligations. The recent enquiry into non-compliant building materials evidenced government failure to regulate and enforce the law. In that case the Building Code of Australia and the relevant standards. In this instance workplace law.

What defence would Worksafe NSW offer in the event of a serious accident on this project or hundreds just like it? Would Worksafe NSW be the prosecutor or the defendant? Would they be conflicted between covering their lack of action and trying to lay all the blame on a third party? Just not them. Could they be joined in a class action by all of the workers injured or the families of those killed for culpable negligence in performing their public interest and duty of care obligations? There is plenty of evidence.

The challenge all regulators are facing these days, is how they might come up with a more effective “future-fit” regulatory system. This will not be achieved by flick passing their responsibilities under the guise of “cutting more red tape” and leaving it to industry. That is not a solution. The competing forces of public interest and profit make the outcomes predictable. We can see that here.

I have spoken to many field officers across multiple compliance areas and asked why there seems to be no follow-up or penalties for what we all agree are offences under the law.

They say that there are no resources; that mounting an action is hard to support. When the offender fights back, the process is stressful and the opposing resources are more than they have.

They report that the future is bleak for a public servant who stands up for public interest and loses. They report that the upper level of the public service is often populated with appointments who have little subject expertise and who have a close eye on not overly annoying their minister or industry. Life in the public service can be short these days. These actions can take years to build a brief of evidence for, and get before the courts. These actions can survive governments and depending on the inclinations of the minister of the day can simply be withdrawn. But never amped up.

There is clear regulatory compliance failure across the board in the Australian construction industry. There are enough laws and performance standards. The industry does not need more variations of those standards to clarify what some argue is unclear.

In any regard, duty of care should prevail. Almost everywhere you look government is trying to wrestle with solutions that were failures in the analogue world of the last century.

There is a clear lack of leadership in government to put all of the multi-governance parts of the industry onto a common table to fully appreciate the problem that needs to be solved, and the modern context in which viable solutions may be shaped. Until a big-picture approach is taken, piecemeal attempts to fix what are clear systemic failures will be akin to “digging the same old hole deeper”.’Any clear sighted and unconflicted forum will realise that a future-fit regulatory system will not be derived out of last century mindsets and technologies.

Unfortunately this case study is just the tip of the iceberg. And, any meaningful response to matters like Safework NSW’s ineffective visit to this site on the 14th August must rise above avoidance and arse covering.

Photos in the updated section are from 18 November 2017

Adjunct Professor David Chandler is construction practitioner and industry engagement lead at Western Sydney University’s Centre for Smart Modern Construction.

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