It is essential to monitor industry safety alerts and change systems in response to issues identified in the alerts. The recent prosecution of Quadtilla Pty Ltd (Quadtilla) highlights the need to monitor industry safety alerts and make appropriate changes to systems in response to issues applicable to your site.
Quadtilla was prosecuted for a safety incident that resulted in the death of a 17 year old labour hire apprentice cabinetmaker when a 970kg stack of sheets of wood struck him in November 2008. The Perth Magistrate’s Court found that Quadtilla’s level of criminal responsibility was serious as it failed to learn from two similar fatalities that had occurred in Western Australian workplaces in the 18 months before the apprentice was killed.
In considering what a company should have done in order to meet the duty to provide, so far as is practicable, a workplace where employees are not exposed to hazards, Courts consider the duty on an objective basis. That is, what persons generally who are engaged in the relevant field would have done and known and not what the actual employer knew. One of the matters that will be considered as part of this objective assessment is the content of any industry Safety and Health Alerts and recommendations as to actions that should be taken in response to identified risks.
Following a fatality in August 2008, a WorkSafe Safety and Health Alert was issued about another cabinet maker being killed when he and another employee were holding a stack of medium density fibre board panels while trying to access a panel further back in the stack. The cabinet maker suffered fatal injuries when the panels he was holding fell onto him. It was recommended and noted that:
- employers must ensure the risk of being crushed, pinned or trapped by heavy material in the workplace is eliminated or significantly reduced by engineering controls and the development of safe systems of work for storage, movement and handling of such material;
- employers must ensure employees involved in the storage, movement and handling of heavy materials are properly trained;
- employers should identify all manual handling hazards within the workplace, assess the risk of injury and develop and implement means of reducing the risk; and
- information and guidance is provided in the WorkSafe’s Code of Practice Manual Handling (December 2000).
In addition to issuing Safety and Health Alerts, Worksafe makes available to the public significant information and resources in relation to manual handling tasks on its website.
Despite the Safety and Health Alert and the information available on WorkSafe’s website, Quadtilla had adopted a practice that one or two other employees would support the weight of the outside sheets whilst a person removed a middle sheet when the middle sheet was required to complete the job. On the day of the incident, a middle sheet was required. Another employee supported the outside sheets which became too heavy and subsequently fell on the apprentice.
Following the incident WorkSafe issued another Safety and Health Alert making identical recommendations to that made in the Safety and Health Alert issued in response to the August 2008 fatality save that it also included a recommendation that employers should consider the capabilities of new and young employees to ensure special needs for those employees are assessed and provided for at the workplace.
The Magistrate found that Quadtilla’s methods for storing and retrieving sheets was extremely unsafe. The breach was considered particularly serious as Quadtilla should have been aware of the earlier deaths and taken steps to remove the hazard. It was found that safe methods of storage such as racking were readily available and should have been present in the cabinet making workplace.
A fine of $250,000 was imposed, which is the second highest health and safety fine ever in Western Australia.
The labour-hire employer of the apprentice, Group Training South West has also been charged and will be tried at a later date.
In order to comply with the obligation to ensure, as far as practicable, to provide a workplace free from hazards, employers must ensure that they are reviewing regulators Safety and Health Alerts to assess whether the issues are applicable to their business. This includes not just alerts issued by its own regulators but also alerts issued by similar regulators around the country. If the content of such Safety and Health Alerts are potentially applicable to the business, the employer should conduct an assessment of whether the steps recommended are practicable to be taken in its business. If they are, the steps should be taken. If they are not, it should be documented why the steps taken are not practicable and what alternative steps, if any, have been taken to address the hazard.
OHS obligations extend to all persons in workplaces including persons who are not themselves at work
The prosecutions arising out of the death of aboriginal elder Mr Ward, who died of heat stroke in Western Australia in 2008, serve as a reminder that health and safety duties are owed by everyone and extend to everyone who has a reason to be in a workplace.
Section 22(1) of the Occupational Safety and Health Act 1984 (OSHA) requires a person, to the extent that they have control of a workplace where persons who are not employees of that person work are likely to be in the course of their work, to take such measures as are practicable to ensure the workplace does not expose people to hazards.
Mr Ward, a prisoner, was driven in the back of a van with defective airconditioning in the middle of summer for 5 hours in order to attend a court hearing. It is thought that the temperature in the back of the van exceeded 55 degrees during the journey causing Mr Ward to die of heat stroke.
The Department of Corrective Services and G4S Custodial Services Pty Ltd, the contractor who operated the van, were charged in relation to Mr Ward’s death. Record fines of $285,000 out of a maximum for the offence of $400,000 were handed down to both offenders following pleas of guilty.
Section 20(1) of OSHA requires an employee to take reasonable care to avoid adversely affecting the safety and health of any other person through any act or omission at work.
The two drivers of the van, Graham Powell and Nina Stokoe, were also charged and entered pleas of not guilty.
Subsequently, Powell changed his plea to guilty and was fined $9,000 out of a maximum $20,000 for adversely affecting the safety of a non-employee by causing third-degree burns and his death through an act or omission at work.
Stokoe will be tried in October.
In assessing what must be done with respect to health and safety at a workplace, focus must be placed on ensuring reasonably practicable steps are taken to avoid exposing any person who may enter the work place to hazards whether or not they are employed at the workplace.