Sparke Helmore Lawyers successfully defended an occupational
health and safety (OHS) prosecution brought against its client, GTE
Workplace Management Pty Ltd (GTE). GTE is a labour hire business
that supplies employees to other "host" businesses. This
was one of the final judgements handed down by the NSW Industrial
On the night of 24 March 2009, an employee of GTE was fatally
injured whilst working on a rail construction and upgrade project
in Telrah, NSW.
Two other GTE employees sustained injuries in the incident, as
did another two workers who were employed by other parties working
at the site.
The project was commissioned by the Australian Rail Track
Corporation and involved numerous companies and workers:
Abigroup was engaged by ART Corporation to undertake the works
as principal contractor
Abigroup engaged Taylor Railtrack Pty Ltd to install new rail
Abigroup also engaged Boom Logistics to supply and perform
crane operations for the installation of the new panels
Taylor Rail engaged MVM Rail Pty Ltd to provide labour for the
MVM subsequently engaged GTE to provide additional labour.
On the night of the incident, the workers were using a crane to
lift pre-constructed panels (consisting of rails connected to
sleepers by clips) into place. During this process, a panel that
was being lifted was misaligned and unable to be correctly
Around this time, the crane driver from Boom Logistics lowered
the panel but did not release all of the weight onto the ground.
The supervisors from Abigroup, Taylor Rail and MVM Rail, then
instructed workers to unclip a number of clips on the panel, remove
some of the rails and slide them into place. At this time, the
supervisors and workers were unaware that the panel was not
completely resting on the ground.
The workers started disconnecting some clips on the panel, which
resulted in the remaining clips weakening and the rail lines
springing free. Numerous workers were struck by the rails and
sustained significant injuries.
The Court heard evidence that discussions took place between
representatives from many of the companies involved, on how to
rectify the issue.
GTE was charged with failing to ensure the health and safety of
its employees as it allegedly did not:
keep a record of which employees were contracted to carry out
assess the risks to the health and safety of employees that may
arise while at hosts' workplaces
make inquiries as to how these risks were to be controlled at
hosts' workplaces (such as obtaining safe work method
statements and ascertain who would be supervising employees),
provide instruction in relation to work to be carried out at
GTE pleaded not guilty and maintained that any risks to its
employees arose because of the failures of others and circumstances
that were out of its control. GTE asserted that the incident was
the result of unforeseen circumstances that could not have
reasonably been contemplated by GTE.
GTE was found not guilty. The Judge accepted that the risks to
GTE employees were not caused by any acts or omissions of GTE.
Prosecutions were also brought against other parties involved in
Taylor Rail plead guilty to two charges under the OHS Act and
was fined $200,000
MVM Rail also plead guilty to two charges under the OHS Act and
was fined $160,000
Boom Logistics plead guilty to one charge under the OHS Act and
was fined $100,000, and
Abigroup was heard concurrently with GTE in a defended hearing
and was found guilty of one charge under the OHS Act. The matter is
listed for sentencing hearing on 7 May 2014.
What does this mean?
Labour hire agencies need to be mindful of their
responsibilities at a host's site, even if they are not
continually present on site. In this instance, GTE was not
prosecuted, as it was able to establish it had taken reasonable
steps to determine the type of work being performed by its
employees and had verified the safe work systems implemented by
host entities. In these circumstances, it was accepted that there
was little GTE could have done to avoid an incident arising from
Labour hire businesses should take steps to implement and verify
that appropriate mechanisms are in place to ensure, so far as
reasonably practicable, the health and safety of their employees
during their engagement at host workplaces.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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