The Industrial Court of Queensland has more than doubled the fine imposed on an employer, with President Hall finding the original penalty undermined the Workplace Health and Safety Act (WHS Act).
Transfield Services (Australia) Pty Ltd was engaged by QNI to erect scaffolding at their premises. Transfield accepted the job, even though none of its scaffolders were available at the time because of a work backlog. Transfield therefore contracted workers through a labour hire company to erect the scaffolding. The workers were directly supervised by a QNI worker, but Transfield was responsible for inspecting and tagging the scaffold to indicate to workers that it was safe for use.
A worker was injured carrying materials up the scaffolding. He stepped on a wooden plank covering a gap in the scaffold floor when the plank moved and gave way beneath him. The worker’s left leg and body fell through the gap, breaking his leg.
The Workplace Health and Safety Queensland (WHSQ) investigation revealed that the gap in the flooring should have been covered by nailed plywood across the entire area. This would have reduced the trip hazard of the wooden plank placed across the gap in the flooring, as well as preventing a fall through the floor planking.
Last year Transfield entered a plea of guilty to a charge of breaching its obligations under the WHS Act, causing grievous bodily harm. It was fined $18,000. The Industrial Magistrate found the safety breach was not serious and was isolated to the plank not being properly fastened.
WHSQ appealed against the fine, on the basis that it was manifestly inadequate.
President Hall stated that the sentencing process must underpin the Act and not undermine it. He said that the case was not one of omission to identify and neutralise a hazard. The hazard was brought into existence. Somebody erected scaffolding with a gap in the floor. Somebody failed to fix a kickboard into position, so that metal planking was able to move. Somebody hid the hazard (the gap in the floor) by covering it with a plank, when the option of nailing plywood was available. Somebody then tagged the scaffolding and represented to workers that it was safe to use. There was an error at every step along the way and each of those steps was by way of positive act.
While the President accepted that there were significant mitigating factors, he also recognised that Transfield had pled guilty to the charge and in doing so accepted that it was at fault in not discharging its obligations under the WHS Act.
The President noted that it is difficult to develop a ‘tariff’ in regard to the appropriate penalty. Normally there are only a small number of decisions, each of which deals with individual fact situations, different mitigating circumstances and an ultimate penalty after the mitigating factors are taken into account.
However, in relation to lower level grievous bodily harm injuries such as in this case, President Hall stated that there is a cluster of cases with similar elements of blame and similar mitigating features which fall in a penalty range of $30,000 to $40,000.
The President found that this case fit comfortably within the cluster and that the Industrial Magistrate quite underestimated the seriousness of the offence. The President set aside the fine of the Industrial Magistrate, imposing a fine of $37,500.
Lessons for employers
The fines being imposed by the Industrial Courts for a breach of workplace health and safety obligations are increasing. Two to three years ago the penalty range for a lower level charge of grievous bodily harm was $20,000 to $30,000. The President of the Industrial Court of Queensland now considers the appropriate range for these cases to be from $30,000 to $40,000.
To successfully defend a workplace health and safety prosecution and avoid a penalty, employers must ensure that they have properly managed their exposure to risk by identifying hazards, assessing the risks arising from those hazards and implementing control measures to prevent or minimise the risk.
We can help you to develop systems and processes that will assist you and your workers to discharge your legal obligations and, as far as possible, to avoid incidents or prosecution for incidents. We can also assist you to contain incidents when they occur and to manage subsequent dealings with Workplace Health and Safety Queensland, including in connection with incident investigation or to manage a prosecution.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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