Large Fines for NSW Employers – Failure to comply with Work Health & Safety Act

In two separate cases, the NSW District Court has handed down large fines in fatality matters.

In SafeWork NSW v Aussie Skips Recycling Pty Ltd [2022] NSWDC 276 a worker, Mr Girishanth Singarajah died when a front-end loader reversed over him as he was picking and sorting through waste piles by hand. The tragedy happened while he was working in South Strathfield on 24 May 2018, under the employment of Aussie Skips Recycling Pty Ltd (Aussie Skips).

The District Court Judge Russell found that Aussie Skips did not have adequate precautions in place in relation to readily foreseeable collisions between workers and heavy machinery, stating that the “likelihood of the risk occurring was high”. The employer provided financial, administrative and emotional support to the employee’s family in Sri Lanka by visiting them and offering to make a contribution to the employee’s community.

Aussie Skips was fined $525,000 along with Mr Emmanuel Roussakis, the general manager, who was fined $60,000 after both pleading guilty in relation to the accident. Both Aussie Skips and Mr Roussakis were further ordered to pay the costs of the prosecutor.

In the other case, SafeWork NSW v Mondiale VGL Pty Ltd [2022] NSWDC 275 a worker, Mr Ian Marlow was crushed to death by a reversing reach stacker weighing over seventy tonnes. At the time, the employee was working for Mondiale VGL Pty Ltd (Mondiale) (previously Visa Global Logistics Pty Ltd) on 29 November 2018 at its Banksmeadow site.

The judge stated that the evidence showed “the occasional presence of workers and heavy machinery being in the same area had developed over time but had not been noticed or prohibited.” The judge said that Mondiale knew of the risk which was obvious and highly foreseeable considering their services included freight forwarding, storage and customs clearance.

Mondiale provided financial support to Mr Marlow’s family, has held memorials on the anniversary of his death and has introduced the “Ian Marlow Award” for driver achievement.

Mondiale was fined $375,000 in relation to the accident.

Work Health & Safety Legislation

The Work Health & Safety Act 2011 (WHSA) provides for the duty of care owed by a Person Conducting a Business or Undertaking (PCBU) to its workers:

s 19 Primary duty of care

  • workers engaged, or caused to be engaged by the person, and
  • workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking

  • A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

s 18 What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

  • the likelihood of the hazard or the risk concerned occurring, and
  • the degree of harm that might result from the hazard or risk, and
  • what the person concerned knows, or ought reasonably to know, about:
  • the hazard or the risk, and
  • ways of eliminating or minimising the risk, and
  • the availability and suitability of ways to eliminate or minimise the risk, and
  • after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Penalties under the Work Health and Safety Act

The WHS has a penalty unit system to replace monetary amounts for offences under the Act and the Work Health and Safety Regulations. The value of a unit is increased every year subject to the consumer price index. The 2022-2023 penalty unit value is set at $107.47.

For example, an offence under s 31(1) of the Act – Gross negligence or reckless conduct – has a maximum penalty amount of 3,465 units for an individual (3,465 penalty units x $107.47 = $372,383), 6,925 units for an Officer of a PCBU (6,925 penalty units x $107.47 = $744,229.75), or 34,630 units for a PCBU body corporate (34,630 penalty units x $107.47 = $3,721,686.10).

How can we help

Employers are urged to ensure they have proper systems in place to ensure safety, whilst Company Officers and Managers are reminded of their non-delegable duties to exercise due diligence to ensure the Company complies, or they can be prosecuted themselves.

Source: Chamberlains Law Firm

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