In December 2015, a director was convicted by the District Court of New South Wales for his failure to comply with his obligation as an officer under the Work Health and Safety Act 2011 (NSW) (WHS Act) to exercise due diligence (Safe Work NSW v Austral Hydroponics Pty Limited and Eang Lam  NSWDC 295).
The director of Austral Hydroponics ran a business growing greenhouse truss tomatoes and had a relatively small workforce. He instructed one of his employees, Mr Nuon, to remove pliable plastic sheets from the roof of a hot house located at the workplace.
Mr Nuon used a ladder to climb onto the roof of the hot house and stood on the gutter whilst undertaking the task of removing the plastic sheets. As Mr Nuon was trying to pull away damaged plastic on the roof of the hot house, he lost his balance and fell backwards approximately 2.5 metres. He suffered extensive injuries and passed away after remaining in hospital for 17 months.
In considering whether the director had failed to exercise due diligence, the Court commented that the risk posed by workers falling from the roof of the hot house was 'foreseeable and obviously so'. Despite this obvious risk, the director failed to:
- provide Mr Nuon with any training or instructions in relation to how to safely work at heights;
- ensure that a risk assessment of the task being undertaken by Nr Nuon had been conducted;
- prepare a safe work procedure for the task; and
- ensure that Mr Nuon was adequately supervised while he performed the task.
The Court commented that the ways in which the risk of falling from heights could be minimised were clearly set out in the Managing the Risk of Falls at Workplaces Code of Practice (Code of Practice), which was readily available to the director.
The Court found that the director 'failed to exercise due diligence by taking reasonable steps to ensure compliance with the Code of Practice'. The director and business were each fined $15,000 and $150,000 for their respective breaches of the WHS Act. This is the first case where a court has convicted an officer for failing to comply with a Code of Practice.
What does this mean for your organisation?
- The decision confirms that while Codes of Practice are not legally binding, compliance with Codes of Practice will be considered by a court when determining whether an officer took 'reasonably practicable' steps to exercise due diligence.
- Be conscious that the due diligence obligation now appears to be more onerous than originally thought. Officers should proactively question and test what their organisations are doing to monitor and minimise work health and safety risks.
- Ensure that officers in your organisation continue to receive regular training in relation to their obligations under the WHS Act.
- Consider the implementation of a due diligence framework for use by your organisation and in particular your organisation's officers. The framework is an effective method of recording the ways in which officers will practically comply with their due diligence obligations.