Section 19 of the Work Health and Safety Act (SA) 2012 states that a person conducting a business or undertaking (PCBU) must provide information, training, instruction and supervision which is necessary to protect all persons from risks to their health and safety.
Two recent tragic workplace fatalities have brought to light just how important supervision is in maintaining a safe working environment. The following prosecutions by SafeWork NSW serve as a reminder that administration controls e.g. training, policies and procedures are not always effective when it comes to keeping workers safe, particularly when undertaking high risk activities or the worker is inexperienced.
SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437 (30 September 2022)
The business was fined $400,000, but reduced to $300,000 for an early guilty plea, for failing to supervise an unqualified labourer who conducted work on the roof and fell to his death. During the demolition of a roof, the supervisor instructed the worker to work on the ground, as he was not qualified to work at heights on the roof. The business had multiple safety policies in place, a job safety analysis, daily working-at-heights permits and conducted a toolbox meeting the morning of the job. Despite being told to do groundwork, the worker took it upon himself to grab a harness and join the others on the roof.
The business was still found to have breached its duty to ensure the health and safety of its workers, as they failed to supervise the worker so that he was not on the roof. Given the seriousness of the risks of having an untrained person conducting roof work, Judge Wendy Strathdee noted that employers “must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work”. There were simple steps the business could have taken to avoid the risk, especially given there were 8 workers at the site and the worker was in full view of anyone in the area. This case demonstrates that businesses have a duty to supervise and manage risks, even where employees disobey orders, especially when the risks are catastrophic.
SafeWork NSW v KML Auto Electrics Pty Ltd [2022] NSWDC 439 (30 September 2022)
An automotive repair business was fined $500,000, but reduced to $375,000 for an early guilty plea, after an 18-year-old apprentice was left unsupervised and was crushed to death by a falling truck cabin. The apprentice had only been employed for a week when the director left the worker unsupervised in the workshop for a few hours to perform odd jobs. As the worker had finished all his jobs, he returned to the truck he had been working on the past two days. The vehicle had a cab tilt stay system (CTSS) which required a lock pin to be inserted in the stay arm to stop the cab failing if the lever was touched by accident. It was found the lock pin had not been inserted, so when the worker accidentally made contact with the lever, the cabin fell and crushed him. The business had provided multiple safety alerts to remind workers to check and engage all the safety mechanisms before commencing work.
Judge Strathdee held that the business did not undertake a risk assessment for the works to be done on the truck, the risks were serious and foreseeable and they failed to protect their worker. They could have required the cab to be lowered when work was not being done on it and they should have educated the worker about the required safety measures. Furthermore, the worker was young and inexperienced and should not have been left unsupervised and alone at the workshop on his eighth day. The director also failed to check whether the CTSS had a lock pin and subsequently ensuring it was inserted before the cab was raised for works. Judge Strathdee emphasised, “the risks were so obvious and the potential consequences catastrophic. That is a message that needs to be made very clear to all industries, not just motor repairs, that a blatant disregard for the safety of a vulnerable worker will not be tolerated.”
Both these cases demonstrate clear examples of how important strong supervision is within a workplace. A business may have numerous safety policies and procedures in place and conduct toolbox meetings to educate workers, but the reality is that employees still need to be supervised, particularly if they are inexperienced or the work is high risk. The workplace risks in the motor industry can be catastrophic, so PCBUs need to have measures in place which take into account that workers can be unpredictable, inexperienced, unqualified, disobedient and so on.