Victoria: Employee prosecuted, convicted and fined for breaching s25

In an interesting case, a worker employed by New Pearl Trading Pty Ltd as a storeman, has been prosecuted, convicted and fined $2,500 plus costs of $4,625 for a breach of s25 of the Act - Duties of Employees. On 27 November 2018, the man was seen operating a forklift, in a shared carpark area, driving at speed in between cars and trucks. Further, there were pedestrians walking towards an adjacent gym, in close proximity to the forklift. The man refused to cooperate with WorkSafe inspectors and continued to drive the forklift around the carpark. 

There was a risk of serious injury or death to members of the public from being struck by the forklift.

Victoria Police were called, but the man continued to be uncooperative and refused to provide his name and address to the police officers. When informed by the police officers that he would be arrested, he finally provided them with a copy of his driver's licence.

The employee did not have a forklift licence and was not in the process of obtaining a valid licence. There were no other employees at the workplace that had a licence to perform High Risk Work who were supervising him. The man pleaded guilty.

It has been a long time since an employee has been prosecuted under s25. It would appear that the man's behaviour in this case may justify the prosecution. However, it would be of interest to know whether the man's employer was also charged and prosecuted. While there is no doubt that the worker was in breach of the OHS Act, and should have cooperated with both WorkSafe inspectors and the police, the man's employer was also in breach of the Act and the regulations for failure to ensure the worker had a forklift licence before allowing him to undertake the work; for failure to provide supervision, etc; for failure to ensure that use of plant was safe and without risks to health; and more. 

To check for any Victorian prosecutions before the next edition, go to WorkSafe Victoria's Prosecution Result Summaries and Enforceable Undertakings webpage. 

Comcare Prosecutions

Charges laid over death in detention centre

The Department of Home Affairs and its healthcare provider International Health and Medical Services (IHMS) have both been charged with breaching Commonwealth work health and safety laws over the death of a man in immigration detention.

Following an investigation by regulator Comcare, the Commonwealth Director of Public Prosecutions has filed two charges each against Home Affairs and IHMS alleging they failed in their duties under the federal Work Health and Safety Act 2011 (WHS Act).

The charges relate to an incident on 4 March 2019 where a 26-year-old Iraqi national took his own life at Sydney’s Villawood Immigration Detention Centre. At the time, refugee rights group the Refugee Action Coalition responded to the death by calling for an urgent independent inquiry into immigration detention in Australia, saying the man had shown signs of deteriorating mental health, and suicide had "become normal" within the system.

It is alleged that Home Affairs and IHMS failed to:

  1. provide and maintain a safe system of work at the facility as part of their health and safety duties that extend to detainees; and
  2. provide necessary training, information and supervision to mental health staff in relation to their care for the detainee.

Each charge is a Category 2 offence under the WHS Act, carrying a maximum penalty of $1.5 million. The matter is listed for mention in Sydney’s Downing Centre Local Court on 27 April 2021. Source: Comcare media release; OHS Alert

Department of Defence fined $350,000 over fatality

The Department of Defence was last week convicted and fined $350,000 under federal work health and safety laws after a worker was critically injured during a maintenance operation in Queensland.

Following an investigation by Comcare, Defence pleaded guilty in the Townsville Magistrates Court to a single criminal charge, admitting it failed in its duties under the Commonwealth Work Health and Safety Act 2011

The incident occurred on the night of 16 August 2017 at the Royal Australian Air Force base in Townsville. RAAF personnel were tasked with removing the nylon tape from an aircraft arrestor unit designed to stop planes during emergency landings. Workers were using a tow motor to remove the tape from an eight-tonne arrestor unit on a flat-bed truck. The tape reached the end of the reel, pulling the arrestor unit from the truck and entangling a RAAF member who was on the rear of the vehicle at the time. The arrestor unit and the worker fell onto the runway and the unit landed on the man’s legs, severing one and causing severe injuries to the other.

In sentencing, Acting Magistrate Scott Luxton recognised the early guilty plea by Defence, but also the seriousness of the incident.
Read more: Comcare media release 

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