Prosecutions

Vicotorian prosecutions
Man prosecuted under s32 - reckless endangerment  
A man who went to his son-in-law's automotive workshop in Hoppers Crossing to "get out of the house", and recklessly endangered a worker while he was there, has been sentenced for what was, at that time, the most serious offence under the OHS Act.

David Snell pleaded guilty in the Werribee Magistrates Court, to breaching section 32 of the Act.

In May 2019, he operated a forklift in the workshop and used it to lift an electrician up to the ceiling using a stillage (a type of cage with sides) on the tines. The electrician had been engaged to install cables along the ceiling, and was in the stillage when his assistant threw him some electrical tape. When he tried to catch the tape, the stillage, which was not securely attached to the tines, became unbalanced. Both the stillage and the electrician fell to the concrete floor, causing the electrician serious injuries.

Snell admitted to recklessly exposing the electrician to the risk of serious injury, and was handed a 12-month adjourned undertaking, without a conviction being recorded. He was ordered to pay $500 to a court fund and $1,946 in costs. Source: OHSAlert

Council fined $15,000 for procedure and notification failures
Gannawarra Shire Council has been fined for failing to implement a formal procedure for tagging out unserviceable equipment, and for its misapprehension of its duties under Part 5 of the Act to notify WorkSafe after certain incidents. 

In October 2019, two council diesel mechanics were adjusting a mechanical press when they found the handle to raise and lower the press's bed was not functioning properly. They asked a third worker to use a forklift to support the weight of the bed so its supporting pins could be removed. 

When one of them tried to remove the pins, the forklift moved and the end of one of his thumbs was crushed and severed in a pinch point. Immediately after the incident, the Council considered whether it was required by section 38 of the Act to contact WorkSafe Victoria, but wrongly determined the incident was not notifiable and so did not report. 

WorkSafe did not become aware of the incident until the injured worker contacted it in January 2020, when it investigated the matter and found the press was not tagged out, as required, after the mechanics identified the fault. It found that while the Council's workplace had an informal lock-out-tag-out procedure, the lack of a formalised, documented process created confusion that resulted in the press not being locked out at the time of the incident.

The Council pleaded guilty to breaching sections 38 and 21 of the Act, and was fined $15,000 without conviction, plus $4,118 in costs. 

Crane company fined $18K after tyre explodes injuring worker  
In November 2018 D Caelli Cranes Pty Ltd, a firm providing crane and transport services for the building industry, was engaged by Austral Bricks to move some kiln exhaust fans from outside to inside a newly built shed, and also to move a number of weighbridge deck sections from one area to another location, approximately 500m further along the driveway at an Austral facility.

The workplace had high voltage overhead power lines (22,000 volts) which ran across, and at approximately right angle to the driveway.

After the kiln exhaust fans had been moved, two Caelli employees were instructed to move the weighbridge sections. Once this was done, one worker drove the mobile crane towards a wash bay, with the second worker walking nearby. As the crane approached the overhead power lines, the partially extended boom made contact with them. When the second man approached the first one to check on his condition, the front right tyre of the crane exploded and sprayed him with shrapnel, causing injuries to his leg, torso and face.

The WorkSafe investigation found the task, due to the proximity of the power lines, to be High Risk Construction Work. Further, it was found that although there was a SWMS for the task, it had not been reviewed or revised prior to the work being carried out, and did not address the risk the overhead power lines.

The company failed to ensure high risk construction work was not performed unless a safe work method statement was reviewed and revised before the work commenced. It pleaded guilty to breaching s21 of the Act, and was fined $18,000, without conviction, plus $11,232 costs. 

The incident could have led to the deaths of both workers and once again we question why the company was not convicted, even after it pleaded guilty.  

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

Queensland: another director sentenced to jail, company convicted and fined $300k 
Another company officer has been handed a prison sentence in Queensland, this time for recklessly disregarding a worker's safety concerns in the minutes before a second worker slipped and sustained serious impalement injuries.

Illawarra Enterprises (Qld) Pty Ltd director Michael Peter Walsh was sentenced to four months' jail, wholly suspended for 12 months, in the District Court. Illawarra Enterprises was convicted and fined $300,000 over the incident.

The duty holders were sentenced just days after a Queensland business owner was ordered to serve 18 months of actual jail time – a record under Australia's workplace safety laws – for the industrial manslaughter of a friend who was helping him unload a truck (see Prosecutions in SafetyNet 617).

Illawarra Enterprises and Walsh were charged with breaching section 31 ("Reckless conduct–category 1") of the State Work Health and Safety Act 2011, after the worker sustained his injuries at a Val Eco Homes Pty Ltd housing construction site in Balmoral in February 2018. Both Walsh and his company contested the charges, but were found guilty.

Illawarra Enterprises was engaged by Val Eco to lay blocks at the site, which had a very steep incline with several excavations in and around the block-laying area. The excavations included a 1.9-metre-deep unbarricaded trench that contained an uncapped vertical reo starter bar, and ran alongside a narrow earthen pathway. The worker was travelling up the path when part of it gave way and he fell into the trench and was impaled on the steel bar, severely injuring his groin and stomach. He was transported to hospital with the bar in-situ. It was surgically removed.

A WHSQ investigation subsequently found Walsh had directed his workers to retrieve scaffolding and trestles from the lower area of the site and carry them up the earthen path. The regulator found that several minutes before the worker was impaled, his co-worker slipped on the path and nearly fell in the trench, and reported the matter to Walsh, warning the task was dangerous.

Walsh disregarded these concerns, and took no action. 

The court found that without reasonable excuse, Walsh and his company both engaged in conduct that exposed individuals to the risk of death or serious injury, and were reckless as to the risk.

Val Eco was also charged over the incident, and convicted and fined $110,000 in October 2019 for a category-2 breach of the WHS Act. Source: OHS Alert 

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