June 2021 WHS Newsletter
This month’s update includes several recent court cases relating to reckless conduct resulting in fatal work deaths, fines and also imprisonment.
WorkSafe NSW have surveyed more than 4000 employers and 8000 employees across the State, revealing the impact COVID-19 has had on workplace mental health in NSW. See results attached.
Titan Plant Hire Pty Ltd (trading as Territory Plant Hire)
In the latest of a growing number of reckless conduct cases, a company director and a worker could both be jailed for up to five years, after being charged over the death of a man within the "strike radius" of mobile plant.
NT WorkSafe laid a total of five charges against Titan Plant Hire Pty Ltd (trading as Territory Plant Hire, which faces two charges), Titan director Jason Frank Madalena (two charges), and excavator operator Kim Murray (one charge).
All charges were laid under section 31 ("Reckless conduct – Category 1") of the Northern Territory WHS Act, meaning Titan faces a combined maximum penalty of $6 million.
Madalena, who was charged as an officer, could be fined up to $1.2 million and jailed for up to five years, while Murray, who is accused of breaching his duties as a worker, could also be imprisoned for five years and/or fined up to $300,000.
The killed man was a 30-year-old worker who drove a truck with a flatbed trailer to Titan's plant hire business in Wishart to pick up a hired excavator, in April 2019.
Three attachments – a tine ripper and two small buckets – were stored in the large batter bucket fitted to the excavator, but they were not restrained.
As Murray – employed by a separate company to load the excavator – was positioning the excavator on the trailer, one of the small buckets fell from the batter bucket and fatally struck the 30-year-old worker.
WorkSafe issued a safety alert after the fatality, saying mobile plant attachments being transported should be restrained on the deck of a truck trailer or float, as shown in figure 271 (see image) of the national Load Restraint Guide 2018.
"If smaller attachments are being transported in a larger bucket, these attachments must be securely restrained to the bucket carrying them," the alert says.
In announcing the charges, WorkSafe alleged the 30-year-old worker was helping load the excavator at the time of the incident, and was allowed by Murray to stand within the strike radius of the excavator and the fall radius of the unrestrained attachments while Murray operated the plant.
WorkSafe alleged Murray failed to comply with his duties as a worker to take reasonable care that his acts or omissions did not adversely affect the health and safety of another person, under section 28(b) of the WHS Act.
It alleged Murray could not see the 30-year-old man at the moment the incident occurred. (WorkSafe's alert says that if a mobile plant operator loses sight of nearby person, they should stop operations until they re-establish visual contact with the person.)
Meanwhile, Titan is accused of breaching its primary duty of care to "other persons", under section 19(2) of the Act, and with breaching section 20(2) in failing to ensure, so far as was reasonably practicable, that the workplace it controlled was "without risks to the health and safety of any person".
Madalena, WorkSafe alleged, breached his section-27 duty as an officer to exercise due diligence by failing to: 1) ensure Titan had appropriate resources and processes to eliminate or minimise health and safety risks; and 2) verify that Titan was using appropriate resources and its implemented processes to manage the risks in the workplace.
Titan did not: have a safe system for keeping workers and visitors separated from moving plant; induct or systematically check the qualifications of all visiting workers and others before allowing them to operate and load hired plant; or supervise visiting workers and others as they loaded hired plant, the regulator alleged.
Titan knew or should have known it was extremely hazardous to allow workers to work near moving mobile plant, and the relevant hazards could result in death or serious injury, it alleged.
Absolute Shocker – Working from Heights Risk
Incorrect ladder use may lead to a slip, then a hospital trip, be smart when working at heights.
https://www.safeworkaustralia.gov.au/heights
Other recent recklessness cases
The Northern Territory regulator recently charged another individual with two reckless conduct breaches, after a teenage worker in a remote location sustained serious burns in a drum explosion, before being denied the immediate medical treatment he needed.
Early this week, a Western Australian company director was handed a record-long jail term for the similar offence of gross negligence, in relation to a fatal nine-metre fall.
In Victoria, a health facility director could be jailed for up to five years after being charged with recklessly endangering a client, who died, while the site senior executive of a Queensland mine could be jailed for up to two years, after being charged over the death of a tyre fitter.
MT Sheds (WA) Pty Ltd
A company director charged over a fatal fall has been sentenced to the longest term of imprisonment ever imposed for a work health and safety offence in Australia, while his Western Australian company has received a State record high fine of $605,000.
The Esperance Magistrates Court sentenced MT Sheds (WA) Pty Ltd director Mark Thomas Withers to two years and two months' jail, ordering him to serve eight months immediately and suspending the remaining 18 months for 12 months.
WorkSafe WA said Withers' total and immediate terms of imprisonment were both Australian records for workplace safety offences.
He is also the first person to be jailed under Western Australia's safety laws.
WorkSafe laid a total of seven charges against Withers and MT in relation to the death of a worker, and serious injuries sustained by a second worker in the same incident.
In March 2020, the two MT employees were installing roof sheets on a new farm shed without safety control measures in place when a strong wind or willy-willy lifted a sheet from a pack they were working near and caused them to fall.
The first worker fell nine metres from the roof's apex and sustained fatal injuries. The second worker fell seven metres from the gutter line and suffered multiple fractures to his pelvis, hip, wrist and ribs.
In the Magistrates Court, MT pleaded guilty to breaching its duties as an employer in circumstances of gross negligence – the most serious offence under the State Occupational Safety and Health Act 1984.
Withers pleaded guilty to allowing MT's gross negligence offence to occur with his consent or through his neglect.
Withers was jailed for this offence, and also fined $2,250 for operating a crane without the required licence.
MT was fined $550,000 for gross negligence, plus a total of $55,000 for breaching the OSH Regulations in allowing Withers and the two employees to perform their work without the necessary high-risk work licences, and allowing the killed worker perform construction work when he did not hold a construction induction training certificate (white card).
The company's total OSH penalty was the highest ever imposed in the State.
MT is only the second Western Australian employer to be sentenced for gross negligence, and the first for gross negligence that occurred after the State's maximum OSH penalties increased significantly in late 2018.
"Mr Withers completely failed in every sense to provide a safe workplace for his employees, and as a consequence a young man lost his life and a family lost a loved one," WorkSafe Commissioner Darren Kavanagh said today.
"The State Government is committed to improving workplace safety laws, including ensuring that significant penalties are available to provide incentive to comply with these laws and ensure that community expectations are met," he said.
"Even so, there are no winners in situations like these."
In another Western Australian case, an owner-builder has been fined $25,000, and granted a spent conviction, after a contractor fell from the roof of his two-storey home and suffered serious injuries.
The Margaret River Magistrates Court heard the owner-builder (who can't be named) failed to take practicable steps to ensure persons at the building workplace were not exposed to hazards.
Neither temporary fall prevention anchorages nor scaffolding were installed on the relevant side of the roof despite these controls being locally available and easy to install, the Court heard.
Commissioner Kavanagh noted the owner-builder had duties under the OSH Act because he had complete control over the workplace.
"He granted access to the site, personally managed the day-to-day running of the build, engaged all tradespersons, purchased materials and was even personally engaged in the manual labour of the construction work."
Fatal dismount from moving tractor leads to $150,000 fine
A North Queensland produce company was recently fined $150,000 in the Bowen Magistrates Court over the death of a 37-year-old worker who was crushed when he dismounted from a moving tractor.
The court heard that in March 2019, the deceased was driving six workers slowly around the paddock as they planted capsicum seedlings while seated in plastic seats in the planter attached to the tractor.
The worker was previously seen dismounting the moving tractor to restock the seedling trays and a short time later the planting crew heard a cry for help. He was found under the wheel of the planter and was later declared deceased from heart and chest injuries.
He had worked for the organisation for nine years and dismounting from the moving tractor was common practice until around mid-2018 when the defendant introduced a policy prohibiting it. The policy included the statement ‘never get off a moving tractor’.
Records indicated that the deceased had signed a document confirming he took part in the safety induction only a month earlier but continued to dismount and was remanded for it three times before his death.
Upon sentencing, Magistrate James Morton took into account the defendant’s plea of guilty, noting that the defendant had put in place policies and procedures for the safety of workers, however, in this instance, they were clearly aware that this particular policy was not being followed nor enforced.
The magistrate said the incident was tragic and that the family owned company had worked closely with the man for nine years. The incident could have been avoided had the defendant been more forceful in its approach to enforcing the policy.
He commented that the consequences of the risk were clearly severe, the probability of the risk was very real and the additional steps that could have been taken to avoid the incident were not burdensome or inconvenient.
The company was fined $150,000 plus court costs. No conviction was recorded.
Unmasking the impacts of COVID-19 on workplace mental health
If you have been impacted by the pandemic, you’re not alone. SafeWork NSW surveyed more than 4000 employers and 8000 employees across the State, revealing the impact COVID-19 has had on workplace mental health in NSW.
SafeWork NSW has published its study Worker mental health during COVID-19, which shows the mental health impacts of the pandemic.
38% of supervisors and 27% of workers reported feeling mentally unwell in the last 12 months (November 2019 - November 2020). Of those, 53% and 45%, respectively, said the change in their mental health was directly brought on by COVID-19.
The study also concluded that over the past 12 months 27% of employers felt isolated, 32% of supervisors reported being stressed or constantly under pressure and 27% of workers were being given too much work.
These findings reinforce the need to ensure everyone in the workplace knows what supports are available and they have confidence to access them.
The positive is that there has been an improvement in workplace mental health overall. Since 2017 an additional 12.5% of NSW businesses reported to having taken effective action to create mentally healthy workplaces.
Continue supporting your workplace to take action by visiting the mental health at work website.
For any assistance please do not hesitate to contact us.
