A Victorian telecommunications company and one of its directors were convicted and fined a combined $545,000 after a worker was overcome by gas in an excavation he had been repeatedly ordered to keep digging. The case is a stark reminder that a trench can be a confined space, and that the safest decision is often not to enter at all.
Key facts at a glance
- The penalty: National Infrastructure Solutions Pty Ltd was fined $500,000 across two offences; co-director Robert Felice was fined $45,000 — a combined $545,000, plus costs, in the Moorabbin Magistrates’ Court in June 2025.
- The incident: in January 2023 at Bentleigh East, workers struck an underground gas pipe while excavating; the director directed them to keep digging and repair it rather than report a gas leak.
- The harm: a worker entered the excavation repeatedly, finally head-first, and lost consciousness from inhaling gas in the confined space — suffering respiratory arrest and later acute stress disorder.
- The charges: reckless conduct endangering persons and failing to maintain a safe system of work — general work health and safety offences, carrying personal liability for the director.
- The principle: the updated model Code of Practice for confined spaces (November 2024) pushes duty holders to ask first whether entry is needed at all.
- The competence: nationally recognised confined-space training (RIIWHS202E) is how workers and employers demonstrate they can identify and control these hazards.
What happened in the Bentleigh East case?
According to WorkSafe Victoria, two workers struck an underground gas pipe while excavating a nature strip in January 2023. Instead of stopping work and notifying the gas company and emergency services, the director repeatedly directed the crew to keep digging and repair the pipe — the court heard, to avoid an incident report. One worker entered the excavation several times, each time coming out short of breath. On the final attempt he went in head-first and lost consciousness from inhaling gas in the confined space. A colleague dragged him out. He was hospitalised with respiratory arrest and other injuries, and later diagnosed with acute stress disorder.
WorkSafe Executive Director of Health and Safety Sam Jenkin did not mince words: “By avoiding the paperwork of reporting a gas leak, this company and director deliberately put its workers and the public at risk of serious injury and even death.” The court found a safe system was reasonably practicable: stop all work and contact the gas company immediately to shut off the leak.
| Party | Offence | Penalty |
|---|---|---|
| National Infrastructure Solutions Pty Ltd | Reckless conduct endangering persons | $250,000 |
| National Infrastructure Solutions Pty Ltd | Failing to maintain a safe system of work | $250,000 |
| Robert Felice (co-director) | Reckless conduct endangering persons | $45,000 |
| Combined penalties (excluding costs) | $545,000 | |
When is an excavation or trench a confined space?
Many people picture a confined space as a tank or silo — but an excavation can be one too. A confined space is an enclosed or partially enclosed space, not designed to be occupied by people, with restricted entry or exit and the potential for a harmful atmosphere. The defining risk here was not the depth of the hole; it was the atmosphere. A gas leak into an excavation created exactly that — air that could overcome a person in a space with limited means of escape.
Why this matters: a confined-space atmosphere can incapacitate quickly and silently. The worker here came out short of breath more than once — a clear warning that the space was not safe to re-enter. Recognising an enclosed workspace as a confined space is the first step to keeping people out of harm’s way.
What does the law actually require?
The charges in this case were general work health and safety offences — reckless conduct and failing to maintain a safe system of work — rather than confined-space-specific regulations. That distinction matters: an employer does not need to breach a niche rule to be prosecuted. The primary duty to ensure a safe system of work covers exactly this — and it is non-delegable.
It also reaches individuals: the director here was convicted and fined in his own right, a reminder that officers and managers carry personal liability when their decisions put workers at risk. Where entry genuinely is required, the law expects a hierarchy of controls, a competent person, an entry permit and atmospheric monitoring — but the threshold question comes first.
Do workers have the right to stop unsafe work?
Yes. Under work health and safety law, a worker can cease or refuse work if they have a reasonable concern it would expose them to a serious risk from an immediate or imminent hazard. A gas-filled excavation is a textbook example. The warning signs here were present — repeated shortness of breath — and the safe response was available: stop and call it in. Building a culture where workers feel able to do that is part of every employer’s duty.
Why “do we even need to enter?” is the first question
The model Code of Practice for confined spaces was updated in November 2024, and it reinforces a hierarchy that starts before anyone puts on a harness: can the work be done without entering the space at all? Remote inspection, rethinking the task, or eliminating the need for entry are the highest-order controls; permitted, monitored entry comes only when it genuinely cannot be avoided. In the Bentleigh East case, the safe path was to stop the leak at its source and keep everyone out.
The enforcement climate underlines the point: WorkSafe Victoria recorded more than $17 million in penalties across 137 successful prosecutions in 2025, 17 of them arising from a worker’s death.
Who needs confined-space training?
Anyone who may enter or work in or around confined spaces — in construction, utilities, telecommunications, manufacturing and maintenance — should be trained to recognise and control the hazards. The nationally recognised unit is RIIWHS202E “Enter and work in confined spaces”, which FMS Training (RTO 45189) delivers in person at Lawnton, north of Brisbane. Competent training turns “we didn’t realise it was a confined space” into a workforce that identifies the hazard and stops before anyone is hurt. Our guides to confined-space entry training in Brisbane and the penalties employers are facing are a good starting point.
Frequently asked questions
Can a trench or excavation be a confined space?
Yes. An excavation can be a confined space if it is enclosed or partially enclosed, is not designed for people to occupy, has restricted entry or exit, and can contain a harmful atmosphere. A gas leak into an excavation creates exactly that kind of hazardous atmosphere.
What were the penalties in the Bentleigh East case?
National Infrastructure Solutions Pty Ltd was fined $500,000 across two offences and co-director Robert Felice was fined $45,000 — a combined $545,000, plus costs — in the Moorabbin Magistrates’ Court in June 2025.
Were the charges confined-space offences?
No. The charges were general work health and safety offences — reckless conduct endangering persons and failing to maintain a safe system of work. An employer does not need to breach a confined-space-specific rule to be prosecuted for this kind of failure.
Can a company director be personally fined?
Yes. In this case the director was convicted and fined $45,000 in his own right. Officers and managers can carry personal liability when their decisions expose workers to serious risk.
Can a worker refuse to enter an unsafe confined space?
Yes. Work health and safety law allows a worker to cease or refuse work where they have a reasonable concern about a serious risk from an immediate or imminent hazard, such as a hazardous atmosphere.
What is the first control for confined-space work?
Asking whether entry is needed at all. The highest-order control is to eliminate the need to enter — for example by using remote inspection or redesigning the task — with permitted, monitored entry used only when it genuinely cannot be avoided.
Why are confined-space atmospheres so dangerous?
Because they can be oxygen-deficient, flammable or toxic, and can overcome a person quickly and without obvious warning — often before the person can escape a space with limited entry and exit.
Where can I do confined-space training near Brisbane?
FMS Training (RTO 45189) delivers the nationally recognised RIIWHS202E “Enter and work in confined spaces” course in person at Lawnton, north of Brisbane.