Civil construction company Pipecon's understaffing of a Delacombe worksite meant a supervisor was not able to do his job properly when two men died in a trench collapse in 2018.
Pipecon has accepted it failed to provide appropriate supervision at a pipe-laying site where the high risk of trench collapse was well known, by pleading guilty at the County Court in Ballarat on Tuesday.
Crown prosecutor Andrew Palmer QC said the worksite at the Winter Valley Estate was understaffed, which led site supervisor Shaun Maher to spend most of his time operating machinery rather than supervising.
He said Maher was often working more than one kilometre away from other employees, including Jack Brownlee, 21, and Charlie Howkins, 34, who died in the trench collapse on March 21, 2018.
Shaun Maher was appropriate to be acting as a supervisor, but the circumstances in which he was asked to perform that role did not allow him to do it properly.Andrew Palmer QC, crown prosecutor
The court heard some of the employees on the site had only been working with Pipecon for a short period of time. Mr Brownlee had been employed by Pipecon for two months.
"We say the supervision was well short," Mr Palmer said.
"Shaun Maher was appropriate to be acting as a supervisor, but the circumstances in which he was asked to perform that role did not allow him to do it properly.
"The site had to be properly supervised and it wasn't and the guilty plea shows the company accepts that."
In the prosecution summary of offending, Mr Palmer referred to a statement from Mr Maher that revealed he was short three or four workers and he did not usually operate machinery when supervising sites.
He said he raised the staffing issue at the start of the job with managers and he kept asking for more operators as the job progressed.
The court heard delays in the delivery of prefabricated foam meant a large number of manholes were open at the site and work was being completed out of the usual order.
At the end of the workday on March 20, 2018, Maher asked Mr Brownlee, Mr Howkins and another employee to prepare manhole number eight at the bottom of the site for work the next morning.
An expert said the manhole had been open for a number of weeks and it was inevitable the excavation would collapse without support in place due to the type of clay, but it was not possible to predict when.
Mr Maher was working at the top of the site, about 1.5 kilometres of undulating terrain away from manhole number eight on the morning of March 21, 2018.
The manhole cages and trench barriers were located at the top of the site and Mr Maher told Howkins to take them down to manhole eight when needed.
Mr Maher and two other employees had 'smoko' break together at the site office about 10am, but Mr Howkins and Mr Brownlee did not join them.
The court heard Mr Maher tired to call Mr Howkins, but his phone went straight to message bank.
He said he did not take much notice as it was not unusual and did not go down to where they were working to see why they had not come up for smoko.
Mr Palmer said Mr Maher would have been aware, if he had turned his mind to it, that excavation was completed at the bottom of the site but a manhole cage or trench shield had not been not taken down.
"The prosecution contends high-risk work was either being carried out or about to be carried out without the safety measures in place," he said.
"Despite this, at no point did he check how the work at the bottom of the site was being carried out or check a manhole cage or trench shield had been put in place before any work commenced."
Contractors who were due to complete work arrived at manhole eight about 11am.
They saw the trench had collapsed, with Mr Howkins unresponsive inside and Mr Brownlee with his head and one arm showing while yelling 'get me out'.
All other employees including Mr Maher were called to the trench and began digging the men out with their hands, shovels and an excavator.
Emergency services and Worksafe personnel arrived and dug Mr Brownlee out of the trench alive.
He was flown to hospital in Melbourne by helicopter and died the next day after multiple surgeries from crush injuries.
Doctors had described him as the sickest patient in Victoria at the time.
Mr Howkins died from head injuries sustained in the trench collapse and his body was recovered after Mr Brownlee was dug out.
Family members of Mr Brownlee and Mr Howkins read emotional victim impact statements to the court.
Pipecon company director Andrew Maher stood up in court and made an apology to the victims' families for the two men's deaths and the pain and suffering they have experienced.
"I can assure you we will stop and prevent this from ever happening in the future," he said.
In defence submissions, barrister Stephen Russell QC said Pipecon had cooperated at all stages of the prosecution.
He said there was and still is a level of confusion as to why Mr Brownlee and Mr Howkins were working in the trench without the safety mechanisms available at the time of its collapse.
He said all employees on the site had signed the safe work method statement a few weeks earlier, Mr Shaun Maher ensured there were a sufficient number of protective shields and everyone knew of the safe systems.
"It was mandated shields at all times would be used. Mr Howkins and Mr Brownlee were aware of that," Mr Russell said.
Mr Russell submitted the company's departure from its workplace safety obligations was low level.
He said other workers who attended the site at other times said they saw protective shields being used.
"There should have been compliance with the safe work method statement but there wasn't," he said.
"Mr Maher is firm in his evidence that in the morning he said he reminded Mr Howkins to get the shield, saying something to the effect of 'come and get the shield when you are ready'.
"There was no reckless behaviour or reckless endangerment to say 'we know you are not using the shields and that is okay'.
"We have certainly taken steps to make sure this doesn't happen again."
Pipecon was first established as Andrew Maher Excavations in 1993 and now employs 46 people.
The hearing continued on Tuesday, when Mr Russell said Pipecon accepted Judge Claire Quin would impose a conviction.
He said this could have significant impact on Pipecon's future work with government departments and councils.
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