Prosecutions

Pipecon pleads guilty to one charge over trench collapse which killed two 

In breaking news this week, civil construction company Pipecon pleaded guilty in the Victorian County Court on Monday to one count of breaching the OHS Act in a case over the deaths of two young Ballarat workers after a trench collapse. WorkSafe charged the company in 2019 with two offences over the deaths: failing to provide a safe workplace and failing to provide supervision to ensure a safe workplace.

The company directed Jack Brownlee, 21, and Charlie Howkins, 34, to carry out high-risk excavation work during construction on the Winterfield housing estate at Delacombe on Ballarat's outskirts in March 2018.

Mr Howkins died at the scene after the trench they were working in collapsed. Mr Brownlee was trapped for three hours and died the following day in hospital from his injuries.

The ABC reports that the court heard none of the required safety measures were in place when the men were directed to enter the manhole. The company initially pleaded not guilty, indicating it would argue there were adequate supervision and systems of work in place. The matter has been subject to repeated court delays and a planned County Court trial was adjourned again earlier this month. However, this was resolved on Monday after a representative from the company pleaded guilty to one charge of failing to provide supervision to ensure a safe workplace. Prosecutors withdrew the other charge.

Ballarat Trades and Labour Council secretary Brett Edgington worked closely with the families to advocate for industrial manslaughter laws, which were introduced in Victoria in the wake of the deaths. He said, "For the families, just hearing Pipecon get up and admit guilt I think was a very profound moment." 

Mr Edgington said it was unfortunate the families who had campaigned for stronger workplace laws had to live with the existing legal process. "We've just seen how awful that system is for everybody involved — the fact that it's taken three years, the fact that we've got into a sort of bargaining position on the charges," he added. Source: ABC news online

WorkSafe prosecutes two employers for silica breaches

Over the past couple of years, the effects of exposure to silica dust have been widely publicised due to an increase in young workers being diagnosed with the incurable disease silicosis. This increase has been mainly to do with the popularity of engineered stone in the homes of Australia, which contains extremely high levels of silica, particularly in comparison to 'natural' stone such as marble or granite. 

There has been a lot of activity:

  • successful public campaigns by unions and union councils to reduce the exposure standard in Australia (see: Silica);
  • media scrutiny on programs such as 7.30; The Project; and printed media;
  • the introduction of interim regulations banning the use of power tools;
  • blitzes by OHS/WHS regulators, including health monitoring of workers in the industry.

Last week, WorkSafe Victoria laid charges against two companies for breaching their duties under the OHS Act and regulations and putting workers at risk.

1 - Stonemasonry business charged over silica exposure

WorkSafe has charged stonemasonry business Hilton Stone Pty Ltd with failing to control risks associated with exposure to crystalline silica. The company faces a total of six charges under the OHS Act and OHS Regulations.

The company is accused of failing to provide or maintain a safe system of work by failing to provide proper controls for power tools used to cut, grind or polish engineered stone; and by failing to reduce the risk to employees from machinery, by having an appropriate guard in place.

WorkSafe further alleges Hilton Stone failed to provide employees with appropriate personal protective equipment; failed to put in place health monitoring of employees; and failed to comply with an improvement notice.

The charges follow inspections at the company's Dandenong site between March 2020 and March 2021 as part of WorkSafe's targeted enforcement blitz on crystalline silica risks. The matter was listed for a filing hearing at the Melbourne Magistrates' Court on 26 August.

2 - Quarry operator charged over silica exposure

Boral Resources (Vic) Pty Ltd, operating a quarry at Montrose, has been charged with six contraventions of the OHS Act after workers were exposed to respirable crystalline silica. The company has been charged with:

  • failing to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health; 
  • failing to supervise workers to enable them to perform their work in a way that was safe and without risks to health; 
  • failing to ensure, so far as was reasonably practicable, that the workplace and the means of entering and leaving it were safe and without risk to health.

The charges follow a WorkSafe investigation into work practices at the quarry between January 2016 and November 2019.

WorkSafe alleges the company failed to implement control measures, including the use of respiratory protective equipment, to reduce the risk of workers being exposed to dust generated during blasting, crushing, mixing, screening and transferring quarried rock.

It is further alleged the company failed to control the risk despite obtaining air monitoring results which indicated the dust contained respirable crystalline silica in excess of the Workplace Exposure Standards for airborne contaminants that could cause serious injury or death to workers at the quarry.

Source: WorkSafe media releases

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

NT: reckless conduct charges laid against PCBU, manager

A PCBU faces a maximum, record-shattering WHS penalty of up to $35 million, while its chief operating officer could be jailed for five years, after they were charged with a total of 14 reckless conduct breaches relating to a fatality.

This week NT WorkSafe laid a total of 24 safety charges, across three severity categories, against the operator of the Bootu Creek Mine in the Northern Territory, and 14 against the mine's chief operating officer, Trevor Cook. The matters are listed for the Darwin Local Court on 12 October.

If found guilty of all charges, the operator, OM (Manganese) Ltd, faces a combined maximum penalty of $35 million, while its CEO could be fined up to $2.1 million and jailed for up to five years.

Australia's current record-high workplace health and safety fine of $3.6 million was imposed on the operator of the Dreamworld theme park in Queensland in relation to the deaths of four patrons on a ride.

The case involves the death of a 59-year-old mine superintendent at the Bootu site in August 2019. WorkSafe said the man entered the mine's open cut "Tourag" pit after four workers who had entered the area reported seeing sediment slipping from the wall earlier that day. As he was inspecting the pit wall, a section of it gave way and buried him, causing fatal injuries. Potentially the nine workers who had entered the pit that day could have been killed or injured. 
Source: OHSAlert

Comcare: Defence fined $1 million over live-fire fatality 

The Department of Defence and has been convicted and fined $1 million, the largest recorded for the Commonwealth WHS jurisdiction, under federal work health and safety laws over the death of a soldier during a training exercise in the Northern Territory.

Following an investigation by Comcare, Defence pleaded guilty in the NT Local Court to a single criminal charge under the Commonwealth Work Health and Safety Act 2011. The charge relates to a live-fire exercise at the Mount Bundey Training Area, south-east of Darwin, on 10 May 2017, where a 25-year-old suffered a fatal gunshot wound.

Defence pleaded guilty to the charge in May 2021, admitting it failed to provide a safe system of work for the exercise. This included not providing adequate risk assessments, training and briefings, and failing to mark dangerous spaces at the training site where participants could be exposed to live fire.

Comcare’s General Manager of Regulatory Operations Justin Napier said the risks associated with the training exercise were substantial and foreseeable. “Defence had a range of measures available that would have minimised or eliminated the obvious risks associated with an inherently dangerous activity,” Mr Napier said.

Defence was convicted of a Category 2 offence under section 32 of the WHS Act – exposing a person to risk of death or serious injury. The maximum penalty was $1.5 million. 
Read more: Comcare media release 

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