Inspector Barber v Leighton Contractors  NSWIRComm 145
On 12 December 2012, the Industrial Court of New South Wales handed down one of its highest penalties to an individual company after Leighton Holdings conceded that they incorrectly interpreted an employee's qualifications.
Leighton Contractors Pty Ltd (Leighton) was the principal contractor on a project involving the construction of a dual carriageway on the Hume Highway to bypass the town of Tarcutta, New South Wales. Leighton employed David Pulver, a 39 year old truck driver/refuelling operator, and Terry Wickey, a 27 year old labourer who held a certificate of competency to operate a backhoe front-end loader.
On 1 July 2010, Mr Pulver attended the site to refuel a front-end loader that was being operated by Mr Wickey. After completing the refuelling, Mr Pulver was filling out the relevant paperwork while standing at the rear of the refuelling truck. At the same time, Mr Wickey recommenced operation of the front-end loader and, during a reversing manoeuvre, collided with the rear of the refuelling truck and crushed Mr Pulver between the vehicles. Mr Pulver sustained fatal injuries.
The incident investigation found that Mr Wickey did not hold the relevant qualifications to operate the front-end loader involved in the incident. This was a distinct item of plant to a backhoe front-end loader and required separate certification of competency. Leighton conceded that it had incorrectly interpreted Mr Wickey's qualifications as rendering him competent to operate the front-end loader.
A review of the safe work systems for the site revealed that procedures were in place before the incident in an attempt to minimise the risk associated with the use of plant equipment. These procedures included site specific induction processes, daily pre-start meetings and a vehicle movement plan. However, workers had developed numerous informal practices that potentially undermined the applicable systems and procedures. In addition, it was shown that the procedures may not have effectively addressed the risks associated with the specific task of refuelling. In this regard, reference was made to a WorkCover safety release titled "Moving plant on construction sites" and a Code of Practice "Moving plant on construction sites", which highlighted a number of control measures that should be considered and integrated into systems of work regarding refuelling. These included the use of barriers, spotters, designated times or areas for refuelling plant and maintaining safe working distances.
In response to the incident Leighton undertook a comprehensive internal investigation and review of its policies at the site. It also developed a specified refuelling strategy that detailed risk management procedures, including the creation of designated refuelling and exclusion zones. Leighton also developed a safety campaign that involved the production of a DVD where work colleagues of Mr Pulver talked about the impact of the incident to emphasise the importance of safe work practices.
WorkCover NSW prosecuted Leighton under section 8(1) of the now repealed Occupational Health and Safety Act 2000 (NSW) (OH&S Act) for failing to ensure the health, safety and welfare of its workers. Specifically, it was alleged that Leighton failed to provide a safe system of work by providing, and ensuring compliance with, a task specific work procedures and failed to provide adequate information, instruction and training to its employees in relation to refuelling operations.
Leighton pled guilty to the charge and was fined $350,000. This penalty took into account Leighton's prior convictions, as well as the degree of remorse and contrition displayed.
In sentencing Leighton, the presiding judge acknowledged that Leighton was a safety conscious corporation and had numerous policies and procedures in place at the time of the incident. However, he emphasised Leighton's failure to provide and enforce clear procedures and that there was an evident oversight in ensuring that only appropriately qualified and certified personnel would operate plant machinery.
Lessons for employers
This case illustrates the importance of developing and implementing comprehensive health and safety procedures, particularly for inherently dangerous tasks such as working in and around moving plant and vehicles. These procedures could include:
- taking steps to make sure workers are competent and qualified to operate plant and equipment
- the use of traffic management plans and exclusion zones, and
- providing repeated instructions and training to workers about the risks of working in and around moving plant and equipment.
Under the OH&S Act, the maximum monetary penalty that could be awarded against a corporation was $825,000. Under the new Work Health and Safety Legislation, this maximum penalty has increased to $3 million. Accordingly, if a similar incident were to occur and be successfully prosecuted under the new legislation, then the penalty implemented is likely to be significantly higher.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.