Waste management company Cleanaway has been fined a record $1.1 million for two category-2 breaches of federal work safety laws relating to an Adelaide truck crash that killed two members of the public.
The penalty is the largest ever imposed under the Commonwealth Work Health and Safety Act (WHS Act). Cleanaway Operations Pty Ltd is a licenced national employer in the Comcare scheme and subject to regulation under Commonwealth work health and safety laws.
The charges arose from an August 2014 incident in which a loaded Cleanaway vacuum truck, being operated by an inexperienced driver without a mentor or buddy, descended a steep section of Adelaide's Southeastern Freeway at high speed and collided with three cars at an intersection, killing two people. Two other people were seriously injured in the incident, as well as the truck driver, who suffered a broken neck and had to have his right leg amputated.
The truck driver was new to heavy vehicle driving and had been a Cleanaway employee for just five days when he was tasked with driving the manual-transmission vacuum truck alone. He was descending a very steep hill on the freeway when the truck suffered a catastrophic brake failure and reached a speed of more than 150km/h, before colliding with the cars.
Comcare CEO Colin Radford said Comcare’s investigation found Cleanaway’s driver training was inadequate, exposing the driver and other road users to the risk of serious injury or death. “The obvious safeguard was for Cleanaway to have enforced a system of work that ensured the driver was supervised until he was experienced in operating a manual heavy vehicle in these conditions,” he said.
Comcare first charged Cleanaway over the 2014 incident in 2016, bringing eight category-2 charges. Cleanaway challenged the charges but was found guilty in 2021. In 2022 Cleanaway was partly successful in its appeal against this verdict, with the Judge in that case finding the prosecution's case was too "expansive" and setting aside six of the eight category-2 convictions.
The Judge found that Cleanaway had committed one breach of its duty to ensure, so far as was reasonably practicable, the health and safety of its workers, and one breach of its duty to ensure other persons were not exposed to unreasonable risks from its business or undertaking. He strongly dismissed Cleanaway's claim that it was entitled to assume the truck driver was competent to drive the manual vacuum truck in the Adelaide Hills because he had obtained a heavy vehicle licence.
Cleanaway then took the case to the South Australian Court of Appeal, unsuccessfully arguing that the Court failed to apply the proper test of risk causation, and that the Comcare inspector who launched the case against it had not been authorised to do so.
Cleanaway’s only remaining avenue was to apply to the High Court for special leave to appeal against the rulings, but the Court dismissed that application earlier this year, and the matter was returned to Chief Justice Kourakis in the South Australian Supreme Court for sentencing, resulting in the $1.1 million fine.
In addition to this record fine, Cleanaway (operating at the time as Transpacific Industries Pty Ltd) also holds the record for the highest penalty imposed under the Commonwealth jurisdiction's previous work safety statute, the Occupational Health and Safety Act 1991. In that case it was fined $363,000 after one of its garbage trucks, which had faulty brakes, crashed into two cars in a Perth street in 2011, killing one person and injuring another.
Chief Justice Kourakis noted in his sentencing remarks that Cleanaway had allowed a practice to develop where its truck drivers were certified as competent for all tasks based on "incomplete assessments" and then assigned high-risk jobs. He also highlighted that the company’s failings that led to the double fatality were similar to the failings behind one of its previous offences, in that they involved existing documented safety procedures being applied in a "haphazard" way.
Mr Radford said Comcare acknowledged the difficulties associated with the lengthy legal proceedings, caused by the multiple legal challenges raised by Cleanaway, and the impact this had on the victims and their families.
“This penalty comes more than a decade after the incident. We sincerely thank everyone involved for their patience and understanding – especially those injured and the loved ones of those lost,” he said.
The contrast between the resources expended by Cleanaway to minimise their responsibility for this horrific incident – an incident that killed two and seriously harmed several members of the public and their own employee, leaving them with life changing injuries - and their apparent efforts to provide a workplace that is safe to workers and other people is jarring.
As previously reported in SafetyNet, Cleanaway is no stranger to allegations of poor work practices.
Read more: Record WHS penalty over fatal truck crash | Comcare