The District Court found Boral Cement guilty of a Category 2 offence under s 32 of the WHS Act 2011 (NSW) for failing to comply with its primary duty of care under s 19(1) in relation to the replacement of a bucket elevator conveyor belt, where an unbalanced belt free-ran, causing a fluid coupling to explode and seriously injure a worker. The Court held that Boral's duty as a PCBU was not discharged merely by engaging specialist contractors (Nepean and Fenner) and an OEM advisor (Beumer), and that Boral failed to ensure a safe system of work including by failing to stop work and conduct an updated risk assessment when the method of work changed, and by failing to confirm the belt was balanced before de-isolation. The Court rejected SafeWork's submission that the contractors were agents of Boral under s 244 of the WHS Act, finding that the contractual arrangements expressly negated agency and that the contractors were independent contractors, not acting in a representative capacity for Boral.
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