Employers Whacked After Fighting OHS Charges

15 December 2017

In a major decision affecting OHS considerations, two employers have been ordered to pay a total of $1.55 million after being convicted of OHS breaches which led to the death of a worker.

The jury found Downer EDI Pty Ltd (Downer) failed to provide a safe system of work, adequate safety information, instruction or training, or ensure non-employees weren’t exposed to health and safety risks.

County Court Judge Parrish consequently fined Downer $1.3 million, whilst VicRoads was fined $250,000 after being found to have breached the state Occupational Health and Safety Act 2004 (Vic) (OHSA).

Background Facts

In late November 2011, a Statewide Traffic Control Pty Ltd employee who was subcontracting for Downer was killed after a street sweeper reversed over him. The worker was moving bollards on the street at night at a Downer and VicRoads road resurfacing site. This was the second death by a reversing vehicle on a Downer site during that financial year and had occurred despite the worker requesting that further safety precautions be put in place for the operation of vehicles at night.

Hearing

OHS breaches were subsequently found against Downer, VicRoads and the driver. After pleading guilty, the driver was sentenced to a two-year corrections order of 500 hours of unpaid community work.

In October 2015, the Court of Appeal rejected Downer and VicRoad’s contention that the conduct in question should be governed by the Road Safety Act 1986 (RSA) rather than the OHSA. Had the Court agreed, this would have left defendants liable to maximum safety fines of just 60 penalty units equalling $7,328 rather than 9000 penalty units equalling $1,099,260 under the OHSA.

However, the Court found no evidence that Parliament had intended to exempt on road work sites from the OHSA’s application, rejecting the argument by Downer and VicRoads.

Downer then argued that the charges failed to quantify why it was necessary to provide workers with specified training and information, and did not provide enough detail around the alleged failings in training and information by Downer. It was submitted that the OHS charges did not disclose an “offence known to the law”.

The Court found the likelihood of a death or serious injury resulting from a collision between the vehicle and workers was high. Significantly, the killed worker had raised concerns with the site supervisor about the street sweeper operating near pedestrian workers, but the issue wasn’t addressed.

There is little doubt that had [the worker’s] concerns been listened to, and the risks at the site been addressed, this tragedy would not have happened,” WorkSafe Health and Safety Director Marnie Williams said after the verdict was reached.

Any work that involves the need for pedestrian employees to be around traffic is high risk, and safety needs to be considered above everything at all times,” she said.

Lessons for Employers

WorkSafe said employers must ensure:‚Äč

  • Adequate lighting, signage and protection of road workers from traffic;
  • The implementation of a thorough traffic management plan, which is strictly enforced and known by all employees;
  • Adequate space on all mobile work sites;
  • Proper risk management strategies are put in place; and
  • Safe work standards are implemented, followed and updated on a regular basis.