A judge says construction company’s punishment must send a message to other employers

Civil construction company Pipecon has been convicted and fined $550,000 for a workplace safety breach that killed two workers on a housing development in Ballarat.

Key points:

Pipecon pleaded guilty in the County Court more than three years after the fatal trench collapse

A judge says she accepts Pipecon's conviction may affect its ability to obtain government work

Families of Jack Brownlee and Charlie Howkins helped push for industrial manslaughter laws, which have since taken effect

Jack Brownlee, 21, and Charlie Howkins, 34, died from injuries sustained in a trench collapse at the Winterfield housing development in the suburb of Delacombe in March 2018.

Pipecon pleaded guilty in the County Court last month to one count of failing to provide supervision to ensure a safe workplace.

At the plea hearing, the court was told Pipecon's site foreman Shaun Mahar had raised concerns the project was understaffed and, by the time of the fatal trench collapse, was spending almost all his time operating excavation equipment instead of supervising other workers.

Mr Mahar was working more than 500 metres away from Mr Brownlee and Mr Howkins when they were killed.

In sentencing in the County Court in Ballarat, Judge Claire Quin said he "must have been aware, if he turned his mind to it" that high-risk work was being carried out without critical safety equipment of a manhole cage and a trench shield.

A young man poses for a school photo
Jack Brownlee, 21, died from injuries he sustained in a trench collapse on a Pipecon worksite in March 2018.(Supplied: Damascus College, Ballarat)

Judge told of 'soul-destroying impact'

Judge Quin said the sentence needed to send a message to other employers that a failure to supervise staff on high-risk work "will attract significant punishment".

She accepted Pipecon had a work safety system in place but said, "this kind of work was so obviously and inherently dangerous, it was important there was meticulous compliance".

She said Pipecon was well aware of the consequences that could arise from such a failure to supervise staff.

Judge Quin said the men's families had expressed "understandable grief, pain and anger" of the "soul-destroying impact" of their loved ones' deaths.

"Nothing this court can do will bring either of them back, but I have taken into account the impact on them," she said.

Judge Quin also accepted Pipecon had no previous safety issues since its establishment in 1993, that its managing director Andrew Mahar was "traumatised" by the incident, and that a conviction was likely to impact on the company's ability to obtain contracts for government work.

Pipecon faced a maximum fine of $1.4 million.

Ballarat Regional Trades and Labour Council secretary Brett Edgington said the fine was "a small cost for Pipecon for the death of two workers".

"No amount of money could make up for the loss and grief that has happened as a result of that incident," he said.

"Really, the great loss to that company is they now need to tick a box when applying for tenders and contracts for state and local government that they do have a recorded conviction against them," Mr Edgington said.

"The incredible fight and bravery of those families means that in future if this was to happen, and we hope it never does, companies, directors would be facing significant jail terms and much, much harsher penalties."

Men taken by 'greed and self-interest'

Jack Brownlee was named in honour of his great-grandfather, who served at Tobruk and New Guinea.

Charlie Howkins was the youngest of four, a skilled carpenter and stockman born to a rural Queensland family.

The court was previously told of the families' anger towards Pipecon and Andrew Mahar, who until the plea hearing had not apologised.

In her victim impact statement, Mr Howkins' wife Lana Cormie said that "greed and self-interest stole Charlie from us".

a family picture of a mother, father, baby boy and a their young daughter
Charlie Howkins, pictured with his wife and young children.(Supplied: County Court of Victoria)

The incident devastated the families of the two men, including Mr Howkins' two young children who "can't comprehend that their beloved Daddy could go to work and never come home".

"In fact, our son George's first full sentence was 'when Daddy come back?'" Dr Cormie said.

"He was 16 months old."

Dr Lana Cormie later spoke to ABC Ballarat and described the outcome as "disappointing".

She said her family hoped for a coronial inquest into the deaths and that industrial manslaughter laws would be taken into consideration in future incidents.

"I acknowledge that, unfortunately, this sentence is in the upper end of OHS cases… Because historically, the sentences have been quite low," Dr Cormie said.

"We would've liked to have seen a penalty that, in our view, was more in line with the breaches…. But our legal system is based on precedent and unfortunately … the precedents are low.

"There's a public perception that the penalty handed down goes to the families … and I feel it's important the public understands that isn't the case."

Dr Cormie called the support of the union and Ballarat community "humbling".

"Everyone has the right to come home from work alive and well at the end of the day. And that is a right that wasn't afforded to Charlie and Jack, because of the actions and inactions of Pipecon."

Industrial manslaughter campaign

Mr Brownlee's father Dave was forced to resign from his job at a gold mine, having become "too sensitive to safety" issues.

Dr Cormie told the court that for "practical and emotional reasons", she too was unable to return to her job as a veterinarian.

The relatives and friends expressed disbelief two workers could die in a trench collapse in the present day.

"I find it ironic that Jack's great-grandfather was a decorated returned serviceman, and his great-grandson died of warlike injuries," Dave Brownlee said at Pipecon's plea hearing.

Dr Cormie and the Brownlees were instrumental in a campaign for the introduction of industrial manslaughter laws in Victoria after their loved ones were killed.

Legislation creating the offence took effect on July 1, 2020.

City of Ballarat Council chief executive Evan King called the accident a "devastating tragedy".

"All City of Ballarat tenders are evaluated on their merits under a wide range of conditions and through a rigorous tender process," Mr King said.

"Pipecon applications would be considered like all other tenders in our process, with occupational health and safety performance being one of the factors taken into consideration."

Posted 12 Nov 202112 Nov 2021Fri 12 Nov 2021 at 1:19am, updated 12 Nov 202112 Nov 2021Fri 12 Nov 2021 at 1:40pmShareCopy linkFacebookTwitterArticle share optionsShare this onFacebookTwitterLinkedInSend this byEmailMessengerCopy linkWhatsApp

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