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Details of successful prosecution against E227230

Incident description

The defendant company held duties under s.19 (1) of the Work Health and Safety Act 2011 being a specialist employment service provider.

On 19 April 2016, work for the dole (WfD) workers were placed by the defendant to undertake work at a regional showgrounds. At approximately 12:15pm a WfD participant died after falling from the back of a flat-bed trailer towed by a tractor.

The WfD workers had been instructed by an employee of the showgrounds to use the tractor and trailer to collect bins around the grounds. The workers began to arrive at the showground at approximately 7:30am. They were unsupervised while completing tasks, before and after the arrival of the defendant's supervisor at 9:20am. After this time, the workers continued to use the tractor and trailer unsupervised. The workers weren't provided with a tool-box talk regarding the tasks that they were to undertake at the showground.

Court result

On 25 October, the defendant pleaded guilty in the Toowoomba Magistrates Court to breaching s.33 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.

The court found the defendant's failure to ensure, as far as reasonably practicable, the health and safety of its workers because supervisors failed to deliver supervision, training, induction and risk assessment was a breach of the Act.

It was told of a number of reasonably practicable measures the defendant could have implemented. These included: ensuring supervisors complied with the organisation's policies, in particular its Workplace Health and Safety Manual, and making sure supervisors provided WfD workers with appropriate site induction and training, following a proper risk assessment.

The prosecution alleged that while the defendant had a suite of policies and procedures, it failed to ensure they were being followed by staff supervising the programs. The provision of supervision of WfD workers was at the core of the defendant's business and was contingent in the terms of its contractual arrangement with the Commonwealth Government. The prosecution submitted that WfD workers could be vulnerable, many undertaking the program are inexperienced and have no choice but to participate or lose part, or all, of their income support payments.

Magistrate Vivianna Keegan acknowledged this was a category 3 offence and that the maximum penalty of $500,000 was significant. Whilst admitting that the loss of a life was tragic, her Honour said it was not an element of the offence under section 33. However Magistrate Keegan identified that this was an obvious risk and it was relatively easy to take steps to avoid that risk.

Magistrate Keegan determined that simply having systems was not enough, and there must be measures in place to ensure they are followed.

Her Honour took into account the early guilty plea, post incident steps- including expanding the WHS team, re-training of staff and management and cessation of the WfD program. Magistrate Keegan acknowledged the defendant had not been prosecuted previously for any work health, safety breach and was a good corporate citizen, so ruled the fine should be $150,000, but discounted to $90,000 to account for the mitigating features.

The defendant was also ordered to pay professional and court costs of almost $1,400. The court ordered that no conviction be recorded.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the Social Assistance industry where there is exposure to risks while inadequately supervised, duty holders should consider the following:

Details

Industry:
Healthcare and social assistance
Defendant:
E227230
Date of offence:
19/04/2016
Injury:
Fatality
Court
Toowoomba Magistrates Court
Magistrate:
Magistrate Vivianna Keegan
Legislation:
s.33 of the duty under s.19(1) Work Health and Safety Act 2011
Decision date:
25/10/2018
Penalty:
$90,000 fine
Maximum Penalty:
$500,000
Conviction recorded:
No
CIS event number:
E227230