Breach of Safety Convictions
Breach of Safety Prosecutions
Regulators can (and do) carry out legal prosecutions through the courts against individuals, employers or businesses who have broken safety laws or workers compensation legislation.
No matter where you are, or the terminology used we are responsible for safety!
Common Regional Terminology includes:
Workplace Health and Safety (WHS)
Occupational Health and Safety (OHS)
Occupational Safety and Health (OSH)
New South Wales
22 June 2018
Central Coast Metal Protectives Pty Limited
On 24 September 2015, a 20 year old labourer and a 19 year old labourer, suffered disorientation and vomiting after cleaning inside a metal pontoon, a confined space with no ventilation while using paint thinners.
After a SafeWork NSW investigation the defendant, Central Coast Metal Protectives Pty Ltd, was charged with a breach of section 32 / 19(1) of the Work Health and Safety Act 2011.
On 22 June 2018, the defendant was convicted by the District Court and fined $45,000.
28 May 2018
Gerard Gibson
On 18 February 2017, the defendant produced a document in complying or purportedly complying with the WHS Act and the WHS Regulation that the defendant knew to be false or misleading.
After SafeWork investigation the defendant was charged with 2 counts of breach of section 268(2) of the Work Health and Safety Act 2011 and 4 counts of breach of section 43(1) of the Work Health and Safety Act 2011.
On 28 May 2018, the defendant was convicted by the Local Court of 1 count pursuant to s43(1) of the Work Health and Safety Act and fined $6000 with 4 matters taken on a Form 1, and 1 count pursuant to s268(2) of the Work Health and Safety Act with 1 matter taken on a Form 1 and fined $3000.
22 May 2018
Abbas Rabih Tawil
On 4 January 2017, a 46 year old renderer was working on a mobile scaffold when the mobile scaffold tipped and he fell approximately two metres.
After a SafeWork investigation the defendant was charged with 1 offence of failure to comply with a notice under section 155(5) of the Work Health and Safety Act 2011.
On 22 May 2018, the defendant was convicted by the Local Court and fined $5,000.
22 May 2018
Render Texture Cladding Pty Ltd
On 4 January 2017, a 46 year old renderer was working on a mobile scaffold when the mobile scaffold tipped and he fell approximately two metres.
After a SafeWork investigation the defendant was charged with 2 offence of failure to comply with a notice under section 155(5) of the Work Health and Safety Act 2011.
On 22 May 2018, the defendant was convicted by the Local Court and fined $10,000 on each count.
18 May 2018
Mark Paul Marando
Mark Paul Marando failed to comply with Improvement Notice issued on 5 November 2015 to take action in relation to abandoned underground petrol tanks.
After a SafeWork NSW investigation the defendant Mark Marando was charged with a breach of section 193 of the Work Health and Safety Act 2011.
On 18 May 2018, the defendant was convicted by the Local Court and fined $2,000.
South Australia
11 May 2018
Jarrad MacGillvary Pty Ltd and Callan MacGillvary Pty Ltd
Campbell v Jarrad MacGillvary Pty Ltd and Callan MacGillvary Pty Ltd
Jarrad MacGillvary Pty Ltd and Callan MacGillvary Pty Ltd were convicted and fined $105,000 each after pleading guilty to a breach of s32 (as read with s19) of the Work Health and Safety Act 2012 (SA). Compensation totalling $50,000 (5 x $10,000) was ordered to be paid to the worker’s family. On 9 August 2016, a 17 year old carpentry apprentice was killed when a 13 metre section of propped timber framing fell over striking the worker in the head and chest causing fatal crush injuries.
The defendants failed to ensure to that their workers used a system of work which minimised the risk of timber framework falling by:
- requiring all props used as temporary bracing to be nail-fixed at the top of a stud or top plate of the wall frame; and
- adequately secured at the base to the slab, the ground or some other immovable object.
2 March 2018
Laszlo Bajtek
Soulio v Laszlo Bajtek
Laszlo Bajtek was convicted after pleading guilty to sections 19 and 32 of the Work Health and Safety Act 2012 (SA). The charges relate to a workplace incident which occurred on the 1 June 2015 when a worker was seriously injured by a moving forklift.
The defendant failed to:
- comply with his health and safety duty prescribed by s19 (1) of the Act because he failed to ensure, so far as was reasonably practicable, the provision and maintenance of a safe system of work in relation to the task which minimised the risk [of] pedestrians coming into contact with a moving forklift in the area at the site where the task was performed, being an adequate traffic management system which prohibited the use of forklifts in the area where the task was performed.
- comply with his health and safety duty prescribed by s19(1) of the Act because he failed to ensure, so far as was reasonably practicable, the provision of information, training and instruction or supervision that was necessary to protect the worker from risks to his health and safety arising from the performance of the task at the site.
Given the defendants inability to pay, Magistrate Ardlie proceeded under the provisions of s13 of the Criminal Law (Sentencing) Act 1988.
The penalty imposed if the defendant was in a position to pay is $120,000 reduced by 20% to $96,000 for the guilty plea.
Queensland
6 July 2018
Incident description
The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011. It operated a lychee farming and harvesting business, a family operation in the region for some five decades.
It employed casual pickers to pick fruit. On 23 January 2017 a 20 year old worker was performing picking work, walking out onto one extended plank from a modified EWP which had two extendable planks (like fork lift tynes) connected to a tractor. One or two planks (50 cm x 200 cm each) could be extended and workers would walk the plank(s) and put fruit in bags.
The trailer was positioned in a tree line, and elevated approximately 2 metres. Only one plank, the left corner plank had been extended. As the worker walked out on the plank, he grabbed a tree branch for stability, but another branch contacted the side of his leg causing him to lose balance and fall to the ground. He fell and sustained back injuries requiring surgery.
Court result
On 6 July 2018, the defendant pleaded guilty in the Maroochydore Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.
Magistrate Madsen fined the defendant $50,000 and ordered professional and court costs totalling $1092.55. He also made a s.239 order that the defendant not offend against the Work Health and Safety Act 2011 for a period of 12 months, with a recognisance in the sum of $50,000 to be forfeited if convicted of an offence within this period. The court ordered that no conviction be recorded.
In reaching a decision, the Magistrate took into account the importance of engineering controls and how the risk could have been minimised. This was affirmed as post-incident the defendant immediately remedied the deficiency without much cost by setting up guarding and other physical barriers to protect workers from a fall from height. The court accepted the need to be proactive and generally deter others in this line of work.
22 June 2018
The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011 and operates a business involving abrasive blasting and application of protective coatings to items of steel product. The business owned and operated various items of plant including an 8 tonne mobile yard crane for load shifting.
As a consequence of a fatality that occurred at the workplace on 23 November 2015 the mobile crane was inspected and the following defects were identified – all wheel brakes were defective (only 4% braking efficiency), defective park brake, broken boom operating wire lifting cables, non-operational headlights, taillights, warning light and a non-operational horn. The defendant had systems in place for maintenance of plant, including an on-site mechanic and work-shop, though this crane had not received appropriate mechanical repair for a lengthy period. The defendant was prosecuted for the defective state of the mobile yard crane.
Court result
The defendant pleaded guilty on 22 June 2018 in the Ipswich 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.
Magistrate David Shepherd fined the defendant $50,000 and ordered professional and court costs totalling $1,092.55. The court ordered that no conviction be recorded.
In reaching a decision, the Magistrate noted the risk from operating large mobile plant within the workplace was obvious and the risk from defective plant, particularly brakes, was real given the nature of the plant being operated within this restricted environment – hence the need for adequate systems of maintenance. His Honour acknowledged that there was no evidence that the plant’s defects would be immediately apparent without inspecting the plant however it would have been relatively easy to have followed a planned maintenance schedule given there was a mechanic and workshop on-site.
In deciding penalty, Magistrate Shepherd took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty.
22 June 2018
Incident description
The defendant Robert Poida held a duty under s.28 of the Work Health and Safety Act 2011 being a worker employed as a crane operator at a workplace which carried out sandblasting and application of protective coatings to various items of steel product.
Poida was operating an 8 tonne mobile yard crane on 23 November 2015 within his employer’s workplace when he ran over and killed a pedestrian worker. The defendant was load-shifting a large steel pipe (13.3 meters in length and weighing 2.5 tonne) with the crane. He was assisted in this task by the worker. Poida was a supervisor at the workplace and had requested one of the staff to assist him by slinging the load and then walking alongside to steady it as the crane travelled to the lay-down area. A person carrying out these activities is required to hold a dogman license. Poida should not have asked the worker to carry out these tasks as he was not licensed. In steadying the load Poida permitted the worker to hold the end of the pipe and to walk in the vicinity of the crane’s left front wheel where he was struck and run over.
The defendant should have used a licensed dogman who should have steadied the load by attaching a tagline (available within the workplace and the defendant had participated in the development and was trained in his employer’s Safe Work Method Statement for load- shifting which required one to be used) and/or used a third-party spotter to ensure the pedestrian worker maintained a safe distance from the crane.
Court result
On 22 June 2018, Robert Poida pleaded guilty in the Ipswich Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet his work health and safety duties and was sentenced.
Magistrate David Shepherd fined the defendant $15,000 and ordered professional and court costs totalling $1,092.55.
In reaching a decision, the Magistrate accepted the risk to the pedestrian worker and that it seemed the defendant, who was an experienced crane operator, had become too familiar with his crane duties and familiarity had a part to play in the breach, that is, permitting the worker to be in close proximity to the crane’s wheel. His Honour observed that the defendant had a number of responsibilities with regard to the work activity and that it was his decision not to use the tag-line. His Honour accepted that one of the objects of the Act was to ensure workers were afforded the highest levels of protection when at work. His Honour stated that the nature of the offending was serious and that deterrence was a primary consideration to ensure workers operated large items of plant safely within workplaces.
Magistrate Shepherd accepted that the crane defects (prosecuted separately) were not causative of the fatal incident, it occurred due to the inadequate work method.
In deciding penalty his Honour took in to account the principles under the Penalties and Sentences Act, that the defendant had no previous conviction for any work health and safety breach and that he had entered an early plea of guilty. His Honour also took in to account the character references tendered along with medical reports relating to the defendant. His Honour recorded a conviction due to the defendant’s serious breach of the Act which resulted in a workers death noting that the circumstances of the breach displaced the lack of prior history, early plea and the good references tendered.
Victoria
16 July 2018
Dasco Pty Ltd’s (ACN 004581113) (‘the offender’) predominant business is the manufacture of chemical products for the dairy industry. It operates from a factory in Heidelberg West (‘the workplace’). Within the workplace was an area known as the production area where interaction between powered mobile plant (forklifts) and pedestrians could occur. The offender had a traffic management plan and employee handbook in place where forklift operators and pedestrians were to maintain eye contact, and pedestrians had right of way. On 8 March 2017 an employee of the offender was in the production area. He was undertaking the same task as he had done on the day before, decanting product into drums from a vat but rather than using a forklift to move the drums after decanting he did so by hand, as both forklifts were in use. A forklift operated by another employee turned left around a blind corner of racking. The employee who was decanting was standing on that corner, attempting to move a drum of chemicals. The employee stumbled when moving the drum and extended his leg and foot behind him for balance, into the path of the forklift. The forklift ran over the employee’s right foot. Contrary to regulation 3.5.34(4) of the Occupational Health and Safety Regulations 2007, the offender failed to eliminate or minimise, so far as reasonably practicable, the risk of powered mobile plant colliding with pedestrians. Following the incident the offender implemented several risk control measures, including altering the layout of the workplace, designated marked pedestrian walkways, physical barriers separating mobile powered plant and pedestrians and warning signage. Any of these measures were reasonably practicable to implement prior to the incident. The offender pleaded guilty and was, without conviction, sentenced to pay a fine of $20,000 and ordered to pay costs of $4,11511 July 2018
Belway Labour Management Pty Ltd is a company that provides labour hire services to factories across Australia. Belway was engaged by Hellmann Worldwide Logistics Pty Ltd (the host employer) to assist with container unloading at a factory in Laverton North (the workplace). On 2 August 2016, two Belway employees were unloading containers in the warehouse. A forklift operated by a Belway employee was reversing back when another Belway employee walked behind the forklift and was pushed to the ground and under the forklift, resulting in a fractured leg. The investigation established that Belway had failed to conduct risk assessments at the workplace and failed to liaise with the host employer regarding risks arising from work related activities performed at the workplace. There was a risk of serious injury to Belway employees performing work-related activities at the workplace, when risk assessments had not been undertaken. The matter resolved by way of an Enforceable Undertaking and the charges were withdrawn at the Werribee Magistrates Court on 11 July 2018.
10 July 2018
Hospitality Linen Services Pty Ltd (ACN 140 098 504) (the offender) operates a commercial laundry in Tullamarine. There was a large industrial linen folding machine, known as the Jensen Folder used at the workplace. The Jensen Folder had inward-running rollers that would feed in the linen. The rollers were guarded by a permanently attached fixed guard, and two movable guards on hinges. The movable guards had interlocks fitted that would, if operating as intended, de-energise the machine when opened. Although the fixed guard partially covered the rollers, it was possible to reach under it to access the rollers once the movable guards were out of the way. The movable guards were connected to key-style interlocks that had been bypassed at some point. The rollers therefore operated as normal when the movable guards were open and access to them possible. The offender failed to ensure that guarding was as difficult as reasonably possible to bypass or disable, be it deliberately or by accident, contrary to regulation 3.5.25(4) Occupational Health and Safety Regulations 2007. On 25 November 2016 an employee reported a problem with the Jensen Folder to the team-leader. The team leader understood that she needed to access a part of the machine near the rollers that was “not going upwards as it needed to.” She reached under the fixed guard to access that part and her right hand was drawn into the rollers up to her wrist. The rollers continued running and she was unable to extract her hand. Following the incident, the offender installed magnetically coded interlocks which were harder to bypass. The offender pleaded guilty and was, without conviction, sentenced to pay a fine of $20,000 and ordered to pay costs of $2,586.
4 July 2018
The Sir Paz Estate is a vineyard, located at Wandin East. Ackdale manage the vineyard on behalf of the property owner. The plant and machinery at the workplace is owned by the property owner, which included the DT 45-66 tractor involved in the incident. Ackdale was responsible for the basic maintenance of the tractor. Ackdale was responsible for the basic maintenance of the tractor.
On 23 March 2017 at approximately 12.45pm, approximately 16 labour hire pickers were harvesting grapes from the vines and placing them in buckets. Two employees were in the process of collecting the full buckets of grapes and placing them in the large plastic receptacle fitted onto the rear tynes of the tractor. At some point, the pickers have noticed that the tractor was moving, however one of the employees was not in the driver’s seat. Upon closer inspection, they discovered he was pinned under the rear right hand wheel of the tractor. Initially, the employee was conscious, however his condition deteriorated and he died at the scene. No one observed how he came to be pinned underneath the tractor.
The tractor was not adequately maintained in that the tractor factory fitted dashboard key switch systems had worn, a simple screw type fitting had replaced the ignition key and the tractor was unable to be put into third gear due to an issue with the clutch mechanism. The faulty key system resulted in the tractor being able to be readily started by anyone with a similar flat screwdriver fitting. The tractor was also not fitted with a roll-over protection system. The issues with the tractor exposed employees carrying out the task of collecting grapes in harvesting season to a risk of death or serious injury as a result of being crushed by the tractor.
The offender pleaded guilty to two charges and was without conviction sentenced to pay a fine of $40,000 and to pay costs of $4115.
4 July 2018
Grampians Free Range Poultry Pty Ltd (“the offender) is a company involved in the productions of eggs from free range chickens, housed in a single barn. The offender operates from a farm in a remote rural area (the workplace).
The offender had engaged the deceased and his son to undertake construction work at the workplace. As part of their construction duties the deceased and his son would operate a front-end loader (FEL) at the workplace. The FEL belonged to the offender.
The FEL was in an unsafe condition. The FEL could only be started by either touching the battery lead to the battery cable or by jump-starting the FEL using another vehicle. The starter motor of the FEL was seized in the ‘on’ position, which caused the starter to be engaged once the battery was connected. Furthermore, the access door to the FEL was seized shut, which meant that access to the cabin was gained by climbing through the cabin windows which had no glass. These faults placed the FEL operator at risk of being run over when starting the engine and at risk of injury when climbing in and out of the FEL.
On 29 May 2016, the deceased’s son attended the property to assist the deceased with the construction work. Upon arrival he was notified by other workers that his father was lying on the ground and was not moving. An ambulance arrived and confirmed that the deceased had sustained injuries consistent with crush injuries from being run over.
The offender pleaded guilty and was with conviction sentenced to pay a fine of $230,000.
Western Australia
4 July 2018
Rand Transport (WA) Pty Ltd
Being a principal who in the course of trade or business engaged a contractor, namely METECNO PTY LTD (ACN 096 402 934) t/as BONDOR, to carry out work for it, the Accused failed to, so far as practicable, provide and maintain a working environment in which persons employed or engaged by the contractor to carry out or assist in carrying out work for the Accused, were not exposed to hazards, being matters over which the Accused had the capacity to exercise control; contrary to sections 19(1), 19A(3) and 23D(2) of the Occupational Safety and Health Act 1984.
The Accused entered a guilty plea and was convicted on 16 May 2018. On 20 May 2018 the Magistrate fined the Accused $45,000 and ordered costs of $2900.00.
Full details are available here
18 May 2018
FGS Contracting Pty Ltd
Charge 1: Being an employer did not as far as is practicable provide and maintain a working environment in which the employees of the employer are not exposed to hazards and by that contravention caused the serious harm to an employee. s.19(1) & 19A(2) Occupational Safety and Health Act 1984.
Charge 2: Being an employer allowed a person, an employee, to perform rigging work, basic (high risk work) without holding the appropriate class of High Risk Work Licence. r.6.2(3) Occupational Safety and Health Regulations.
The accused entered a guilty plea at first mention on 13 March 2018 and was convicted. On 18 May 2018 the Magistrate fined the accused$200,000 for Charge 1 and a fine of $25,000 for charge 2. No order for costs.
Northern Territory
19 March 2018
GIBBO’s TYRES PTY LTD
On the 19 November 2015 a young child received fatal crush injuries after a truck tyre fell on him as his family waited for a tyre on their vehicle to be replaced at a Katherine business.
On the 19 March 2018 the defendant was convicted and fined $135,000 for breaching section 32 and $7,000 for breaching section 38 of the WHS Act. A victims levy of $2,000 was also imposed.
4 August 2017
Northern Territory Christian Schools
On the 6 August 2015 a student was run over and killed by a four-wheel drive that he and fellow students were pulling at the Gawa School sports carnival on Elcho Island.
On the 4 August 2017 the defendant was convicted and fined $50,000 for a breach of section 32 of the WHS Act. A mandatory $1500 victims levy was also imposed in relation to the finding of guilt.
Tasmainia
Australian Capital Territory
Date of offence: 20 August 2015.
Date of decision: 07 December 2017.
On 20 August 2015 an excavator commenced demolition of a “Mr Fluffy” house without proper safety controls in place. The residential property in Torrens was scheduled for asbestos removal and demolition. The principal contractor for the project initially did not have adequate documentation in place in the lead up to the demolition, although this was prepared when required by WorkSafe ACT. The new demolition plan indicated that water would be sprayed over the house as it was being demolished, for dust suppression. However, before a hose was in place for water suppression, the excavator operator started demolishing the house, causing release of a dust cloud. The excavator operator continued the demolition while others were trying to get him to stop. There was no effective means of emergency communication between ground staff and the excavator operator, such as a walkie-talkie.
Charge: The company pleaded guilty to a charge under section 33 of the Work Health and Safety Act 2011 (failure to comply with a safety duty under section 19 – Category 3). Maximum penalty $500,000 for a corporation.
Plea: Guilty.
Penalty: $60,000
Court: ACT Industrial Magistrates Court, Magistrate Walker
Date of offence: 20 October 2016.
Date of decision: 12 October 2017.
On 28 October 2016 workers engaged by the owner of commercial premises in Fyshwick used a high pressure hose to clean the corrugated asbestos sheet roof of the building. Debris spread over the surrounding area. WorkSafe ACT inspectors attended, issued notices and arranged for remedial action to be taken under dangerous substances laws, including engaging asbestos specialists for the clean-up, at a cost to the Territory of over $150,000. These costs were paid by the defendant in addition to the penalties imposed by the court.
Charge: Mr Papas pleaded guilty to three charges under the Work Health and Safety Regulation 2011. Firstly, section 419, directing or allowing a worker to carry out work involving asbestos, maximum penalty $6,000. Secondly, section 427, failing to ensure that an asbestos register was readily accessible, maximum penalty $3,600. Thirdly, section 446, directing or allowing a worker to use a high pressure water spray on asbestos, maximum penalty $3,600.
Plea: Guilty.
Penalty: $900 for the section 419 charge; $540 for the section 427 charge; and $540 for the section 446 charge
Court: ACT Industrial Magistrates Court, Magistrate Walker
