Idiot and Inept WHS Consultant Leads to Whs Prosecution

Idiot and Inept WHS Consultant Leads to Prosecution When a PCBU and its WHS Consultant both miss a notorious hazard, the result is predictable: a serious injury, a WHS prosecution, and a crippling fine.​

“Unfathomable” WHS failure

The NSW Industrial Court has convicted Painting and Blasting Industries Pty Ltd after a worker slipped and fell between the rollers of an unguarded conveyor on a blasting machine at its Wetherill Park steel fabrication factory. Justice Paingakulam found it “unfathomable” that both the PCBU’s safety consultant and an experienced WHS-accredited supervisor failed to identify and control the obvious risk presented by the moving parts of the outfeed conveyor.

In October 2022, the labourer climbed via a step ladder onto the outfeed conveyor to help remove a steel beam when the machine was started, causing him to fall between the rollers and suffer severe leg and vascular injuries. The Court accepted that the risk of death or serious injury from workers accessing unguarded moving plant was not only foreseeable, but “notorious” in the manufacturing and fabrication industry.

PCBU convicted under WHS Act

SafeWork NSW prosecuted the company for failing to comply with its WHS duty and exposing a worker to a risk of death or serious injury, contrary to section 32 of the Work Health and Safety Act 2011 (NSW) (Category 2 WHS offence). The maximum available penalty was over $1.86 million, underlining the very real prosecution exposure for PCBUs who do not properly manage plant risks.

Despite having WHS manuals, SOPs, toolbox talks and prior audits, the blasting machine’s outfeed conveyor was unguarded, there was no effective system for safely removing items from the conveyor, and workers routinely used a step ladder to access the danger zone. The Court accepted that reasonably practicable controls were available, including interlocked guarding, lock‑out/tag‑out, and camera monitoring of the conveyor area, all of which were only implemented after the incident.

Expensive lesson in WHS prosecution

Justice Paingakulam assessed the offence as being in the mid‑range of objective seriousness, emphasising that the well‑known risk, the simple control measures and the catastrophic potential consequences drove up the culpability. The significant and ongoing physical, psychological and financial impacts on the injured worker and his family were treated as aggravating factors on sentence.

The Court determined an appropriate fine of $320,000, before applying a 25% discount for the early guilty plea and then further reducing it to $120,000 to reflect the company’s limited capacity to pay. Painting and Blasting Industries was formally convicted, ordered to pay $120,000 and required to pay the prosecutor’s costs, with 50% of the fine directed to SafeWork NSW under the Fines Act.

When a “WHS consultant” becomes a liability

A key feature of this WHS prosecution was the Court’s criticism of the external safety consultant engaged since 2012, who never identified the outfeed conveyor as a hazard, even during a 2018 review of the blasting machine SOP. The judge’s comments send a strong signal: engaging a WHS Consultant does not shield a PCBU from liability if critical, well‑known risks are missed, or if plant risk assessments and guarding strategies are incomplete.

The judgment highlights that regulators and courts will look through glossy WHS paperwork, ISO‑style systems and “tick‑and‑flick” audits to the real question: were notorious WHS risks like unguarded conveyors identified, controlled and enforced in practice? Where the answer is no, PCBUs should expect WHS charges, convictions and substantial fines, regardless of how many consultants and policies they have on the shelf.

Key WHS prosecution takeaways for PCBUs

Unguarded conveyors and moving plant are classic WHS prosecution hazards: they are well‑understood, heavily regulated and specifically addressed in codes of practice and Australian Standards.

Having WHS Consultants, manuals and SOPs will not prevent prosecution if your systems miss obvious, high‑consequence risks and allow unsafe, routine practices to develop.

Courts expect engineered controls such as interlocked guarding, isolation and lock‑out systems, and visual monitoring where workers can access or approach moving plant.

Serious injuries, especially where death was a realistic possibility, will push WHS offences into the mid‑range or above and justify strong general deterrence penalties.

For PCBUs and directors, this decision is a blunt reminder: if your WHS Consultant isn’t finding your biggest risks, a regulator will and the next “audit” might be in the witness box during your prosecution.

For PCBU’s who don’t want to learn this lesson in court, get practical tools and real risk-focused support via our WHS consultant services and free resources at the HSE Direct WHS resources hub.