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Failure to provide and maintain Safe System of
Work ...
THE CASE
WorkSafe Victoria v Orrcon Distribution
Pty Ltd (2016)
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On 28 August 2014, a labour hire worker of Orrcon Distribution Pty
Ltd (Orrcon) was operating a bridge crane to move a load of steel at the
workplace. The workers lowered the load of steel onto a pack of steel
using the crane when the sling caught the corner of the pace, causing it
to lift and dislodge. The pack fell onto another worker’s legs,
trapping him against the steel packs he had been standing on.
WorkSafe Victoria alleged that the employer breached the Occupational
Health and Safety Act 2004 (Vic) (OHS Act) for failing to:
- Provide a safe workplace
- Properly train workers
- Properly supervise workers
The Verdict
The Court heard that the labour hire workers were not provided with
onsite induction, including instruction in relation to relevant safe
operating procedures at the workplace. Orrcon acknowledged that it
failed to provide and maintain a safe system of work that was, so far as
reasonably practicable, safe and without risks to the health of its
workers. Orrcon pleaded guilty and was sentenced to a penalty of
$40,000 and to pay costs of $3,895.
The Lesson
As an employer, employees were not provided with annual refresher
training and information on the operation of bridge cranes and
associated tasks at the workplace. There was also inadequate
supervision of both classes of worker in relation to adherence to safe
operating procedures.
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Failure to provide Support Person results in
hefty fine ...
THE CASE
Bulga Underground Operations Pty Ltd v
Nash (2016)
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Glencore is an international mining company. In 2010, a worker at
Glencore’s Bulga mine in NSW was crushed beneath a moving roof support.
At first instance, the company was fined $50,000 for failing to employ
a person known as a support advance controller who could activate an
emergency stop button if the operator of the moving roof support become
incapacitated. Glencore appealed the decision.
The Verdict
The Court of Appeal had to consider some key legal questions, including
whether a failure to take a step that only minimised the risk of injury,
but did not completely eliminate it, could still be a breach of the law.
In this case, the company argued that that had it employed a support
advance controller, the risk of injury would still have existed and
therefore would not have breached the law. The Court disagreed and held
that a failure to take necessary steps would still be a breach, even if
it did not completely eliminate the risk of injury. The Court also
rejected the argument by the company that were no casual connection
between employing a support advance controller and the risk of injury.
The Court said that the prosecutor only needed to establish that the
particular failing was a ‘substantial and significant cause’ of the
risk. In upholding the appeal for the prosecutor, the Court increased
the original fine to $100,000.
The Lesson
Employers need to be mindful that the law requires them to implement all
reasonably practicable steps to ensure safety, even if a particular step
does not completely eliminate the risk. Courts will take a common sense
approach to this consideration, i.e. if a failure to take a step would
have been a substantial and significant cause of the risk, there would
be a breach of the law if the step was not implemented.
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