Interestingly, following Trinny’s earlier post about companies involved in the responsibility of an innocent worker’s senseless death at a SA desalination plant walking away un-fined and un-prosecuted, I stumbled on a recent legal Victorian case whereby a large fatality-related fine was actually doubled, which appears to show that employers must really go the extra mile to ensure workers are safe and are adhering to their safety management systems.
Recent fatality related doubling of fine shows employers must ensure safety
The Victorian Court of Appeal has doubled the fine against a company that pleaded guilty to failing to provide a safe working environment for employees.
Coates Hire Operations Pty Ltd was fined $500,000, for failing to provide a safe work environment in circumstances where the company was well aware of a hazard that ultimately resulted in the death of a contractor.
“This case emphasises that there is little point in having safe procedures and systems of work, if they are not enforced by management”, Lander & Rogers Lawyers state
“The employer must also actively implement the system in the workplace, including performance management for non-compliance with safety requirements.”
In February 2007, a worker from Redline Towing and Salvage Pty Ltd was contracted out to work for Coates Hire Operations Pty Ltd. The worker drove an elevated work platform onto a tilt-tray truck without using a winch cable. The platform then struck the tray, rolled backwards and, most unfortunately, fatally crushed the worker.
In 2012, the County Court fined Coates Hire Operations 250,000 for failing to provide a safe work environment. However, the Director of Public Prosecutions appealed this decision and argued [rightly, in our opinion] that the $250,000 fine was “manifestly inadequate”.
At the Court of Appeal [President Chris Maxwell, Justices Mark Weinberg & Elizabeth Hollingworth] it was heard that before the fatal accident, Coates Hire had safety procedures in place for the loading hazard. Coates Hire had also issued a safety alert that “all drivers, including contractors [must ensure] that the winch cable must always be connected to the equipment when loading/unloading equipment”.
The Victorian Court of Appeal also heard that the employer’s OHS manager knew there were “differences of opinion” on the proper procedure for loading plant, but that he had failed to resolve the issue because he went on holiday and then “was too busy over the Christmas season”.
The court of Appeal also heard that the manager knew that the winching requirement was not being complied with, but did nothing to enforce compliance
They also stated that the employer knew that the non-compliance with the winching requirement created a real safety risk.
“The incident which had prompted [the employer] to issue [the safety alert] occurred almost exactly a year before [the worker's] fatal accident,” they said.
“On that occasion [an]… employee was injured as a result of the very hazard which the winching procedure was established to prevent.
In determining the level of the new fine, the Court of Appeal gave consideration to the pro-safety initiatives Coates Hired had taken after the incident. These included: introducing an online contractor induction system and driver examinations; employing extra yardmen and segregating bays; appointing an operational manager; and increasing the health and safety team from 5 to 15 people.
However, the Justices also heard that the company had already been convicted twice before for breaches of the occupational health and safety law and that, the “disregard of safety which resulted in [the worker's] death had to be seen against the background of the company’s two prior convictions”
“In 2001, the company was convicted [for] failing to provide a safe working environment and fined $10,000 [and] in 2003, it was convicted of failing to ensure a safe workplace and was fined $22,000, they said.
“The size of the fines indicates that these breaches were very much at the low end of seriousness.
Justices Maxwell, Weinberg and Hollingworth allowed the appeal and doubled the fine to $500,000. They said if the employer had not pleaded guilty, the fine would have been $600,000.
Redline Towing and Salvage Pty Ltd $130,000 [ in 2010 proceedings].
You can read the full case here: DPP (Vic) v Coates Hire Operations Pty Ltd (2012])VSCA 131 (25 June 2012)
[post entered by T on behalf of WCV]