Victorian prosecutions

Winery fined for non-compliant quad bike & no helmets

Weeping Elm Wines, known as Dromana Estate, has been fined $7000 in the Frankston Magistrates' Court after an inspector attending the workplace and met with the manager as part of WorkSafe Victoria's proactive intervention program under the Agricultural project, found a quad bike with no operator protection devices and no roll over protection installed. There were also no helmets available for use. The bike was regularly used on terrain that was 'undulating' and unsealed in parts. Quad bikes are a major cause of death and serious injury in Australian children and adults. Since 2001, 42 children and 207 adults have been killed in incidents involving quad bikes. 

Hefty fine for ignoring notice on unlicensed forklift operator

New Pearl Trading Pty Ltd, a supplier and importer of wall and floor tiles, was fined $25,000 for allowing an unlicensed worker to operate a forklift. 

On 16 October 2018, an Inspector attended the workplace and observed an employee operating a forklift in a shared car park area without a traffic management in place. An improvement notice was issued. On 27 November 2018, the Inspector re-attended the workplace to follow up on the improvement notice. This time the Inspector observed an unlicensed employee operating a forklift. There were pedestrians walking towards an adjacent gym, in close proximity to the forklift. There was a risk of serious injury or death to members of the public from being struck by the forklift. There were no other employees at the workplace that had a license to perform High Risk Work who were supervising the employee.

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

Comcare: WHS charges at Royal Mint

The Royal Australian Mint has been charged with breaching federal work health and safety laws after a three-tonne coin press almost fell on a worker in Canberra.

Following an investigation by regulator Comcare, the Commonwealth Director of Public Prosecutions has filed three charges in the ACT Magistrates Court alleging the Mint failed in its duties under the federal Work Health and Safety Act 2011 (WHS Act).

The incident occurred in the basement of the Mint on 3 May 2019. A contractor was moving the coin press with a forklift when the press became unbalanced and fell, narrowly missing a worker standing nearby.

The WHS Act charges include:

  • Two Category 2 offences (maximum penalty $1.5 million each) alleging the Mint failed to provide a safe system of work and a safe working environment
  • One Category 3 offence (maximum penalty $500,000) alleging the Mint failed to provide the contractor with an adequate Safe Work Method Statement for the transportation of the coin press

Department of Defence pleads guilty

This week the Department of Defence pleaded guilty to a charge under the Comcare WHS Act arising from the death of a young Victorian soldier during a live-fire training exercise near Darwin four years ago. Victorian soldier private Jason Challis was shot during an exercise at the Mount Bundey Training Area in May 2017: he became separated from his training group and crouched down behind a plywood building directly in line with a concealed target.

Prosecutors had alleged a failure to carry out relevant risk assessments and safety checks, including a rehearsal of the exercise without live ammunition, exposed the soldiers to the "risk of death or serious injury".  The court heard that several Defence doctrines, including that such exercises are practised first through dry and then blank ammunition rehearsals, were not followed by the platoon. The prosecutors also alleged that blank ammunition had not been made available to platoons at the range. The department is expected to be sentenced in the coming days. Read more: ABC news online

NSW: PCBU fined $450k after worker killed

Boral Ltd subsidiary Concrite Pty Ltd, which failed to address poorly marked and impeded pedestrian walkways, or implement the recommendations of a traffic management review, has been fined $450,000 (plus $43,413 costs), after a delivery driver was dragged under a vehicle and died.  The company had reviewed its traffic management risks at the Alexandria, NSW site the year before the September 2017 fatality, prompted by a Boral safety alert involving a pedestrian incident at another location. But NSW District Court Judge Wendy Strathdee found the company failed to properly implement the identified controls to protect pedestrians at its high-risk Alexandria site. 

A Caltex Petroleum Service Pty Ltd tanker driver was delivering diesel fuel to the site's fuel station when he inadvertently stepped in the path of a Concrite concrete mixing truck that was attempting to manoeuvre around another mixing truck. The Concrite truck driver was unaware he had hit the delivery, who was caught between the vehicle's twin steering wheels and dragged for 20 metres. He suffered serious injuries and died two days later. Source: OHSAlert

WA: Owner jailed after death of young worker

A small-business owner in Esperance has become the first person in Western Australia to be jailed for gross negligence, after the death of a young worker last year and serious injuries to another.  

In March last year two workers were installing roofing on a shed at a farm in Beaumont, about 100 kilometres east of Esperance, when they were hit by strong winds. A whirlwind lifted a sheet from the pack of roof sheets they were installing, causing them to fall. Jake Williams, 25, died after falling about nine metres from the apex of the shed. 21-year-old Fraser Pinchin suffered multiple fractures of the pelvis, hip, wrist and ribs after falling about seven metres from the gutter line.

Neither worker held the necessary high-risk work licences for the job and neither wore a safety harness. The safety regulator also found that their employer, MT Sheds, allowed Mr Williams to undertake construction work without a construction induction training certificate (white card). The court heard Mr Pinchin had worked for the company for more than three years and would not know how to use a safety harness. 

"Mark Thomas Withers (the sole director of the the shed building company) was well aware of the risks," the prosecutor told the court.  "He'd been in construction for 30 years — 20 years building sheds. He knew exactly what was required."

Mark Withers was jailed for eight months and his company fined $605,000.  He was also personally fined $2,250. Magistrate Genevieve Cleary's sentence handed down in Esperance Magistrates Court, included an additional 18 months' imprisonment, but that was suspended for 12 months. Both the fine and the jail term have set a WA record. Read more: ABC news online  

NT: Charges laid over death of worker in excavator incident

Five charges have been laid over the death of a 30-year-old worker who was crushed and killed by an excavator bucket in 2019 — including two charges against the company director and another charge against an employee.

NT Worksafe has alleged Titan Plant Hire, trading as Territory Plant Hire, its director Jason Frank Madalena and excavator operator Kim Murray breached the work health and safety act for reckless conduct. 

The man was killed at a worksite on Wishart Road in the outer Darwin suburb of Tivendale. On April 29, 2019, when a hired excavator was fitted with a large bucket that contained two smaller buckets and a ripper attachment that were not restrained. A bucket dislodged, striking and killing the worker as he was helping to load the excavator.

The company has been charged with failing in its primary duty of care and failing to ensure its workplace was without risks to health and safety. NT Worksafe alleges it did not provide a workplace induction or properly check the qualifications of workers or visitors before allowing them to operate or load hired plant equipment.

The director has been charged with failing to exercise due diligence.

The excavator operator, employed by a separate company and, although qualified and experienced, operated the machine when another worker was in the fall radius of the unrestrained buckets. 

The company faces maximum combined penalties of $6 million if found guilty. The director could end up with a $1.2 million penalty or five years in prison, or both. The operator also faces five years in prison and a maximum penalty of $300,000, or both. Read more: ABC news online 

QLD: PCBU fined over seven years of recklessness

A Queensland company has been convicted and fined $240,000 for its "reckless" approach to dust control over a period of nearly seven years, which appears to have resulted in at least four workers developing the deadly and irreversible lung disease silicosis. The charges related to failing its primary duty of care, and failing to comply with health and safety duty–category 2 of the State WHS Act.  But the company, Ezystone Benchtops Pty Ltd, was not charged with reckless conduct. Ezystone, expected to go into liquidation, failed to appear in the Court and did not enter a plea.

The company manufactured and supplied engineered stone benchtops for residential and commercial premises. Initially it required its stonemasons to use handheld grinders to dry cut engineered stone without dust suppression systems. Although this was later shifted into a booth, this often filled with dust that workers could taste and smell through their disposable masks. These were repeatedly worn before being replaced, and were not always available.

Ezystone eventually bought reusable respirators, but failed to purchase replacement filters, forcing workers to resort to disposable masks again.

In September 2013, Workplace Health and Safety Queensland inspectors attended Ezystone's premises and advised it of its silica-related obligations to properly train and instruct workers, conduct a risk assessment, implement controls to reduce dust exposure, ensure masks were properly fitted to workers, and monitor workers' health.

In October 2018, the regulator found the PCBU was not: using dust suppression systems with its electric grinders; conducting fit-testing for respirators; or ensuring workers' health was being monitored. This is despite an urgent warning to employers from Queensland’s Industrial Relations Minister several weeks earlier.

Acting Magistrate Byrne found Ezystone had a "reckless, ignorant, cavalier approach" to its workers' safety having been in possession of documents from its suppliers of engineered stone highlighting the presence of crystalline silica and the risks the substance posed to workers.
Source: OHSAlert. More information on Silica  

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