On 16 July 2025, a person conducting a business or undertaking was sentenced in the Hervey Bay Magistrates Court for breaching section 38(1) of the Work Health and Safety Act 2011 (Qld) (‘the Act’), having failed to report a notifiable incident to the regulator immediately.

The defendant conducted a business or undertaking which included the management and maintenance of waste and water infrastructure in the Hervey Bay area.

In September 2023, work was being conducted to replace a water main in Hervey Bay (‘the workplace’).  The work was being conducted in a 1.7m deep trench in which pipes were being placed.  At the workplace was an excavator and bucket attachment.  The bucket attached to the excavator with a quick hitch.

The quick hitch is a device which enables the connection between an excavator arm and compatible tools.  There are two safety switches on the quick hitch, namely an automatic spring engaged safety knuckle and a hydraulic safety knuckle which is manually engaged.  At the relevant time, the automatic safety knuckle was faulty, meaning it would not automatically engage.  As a result, the operator would need to manually engage the hydraulic safety knuckle to ensure that attachments were secured to the excavator.

On 28 September 2023, the work continued at the workplace.  One worker (‘the impacted worker’) was working within the trench and a second worker (‘the operator’) was operating the excavator.  The operator attached the bucket attachment to the excavator, intending to use it to hold a pipe.  The Operator became distracted by surrounding trees after attaching the bucket attachment and did not engage the hydraulic safety knuckle.

As the operator moved the arm of the excavator towards the trench where the impacted worker was working the bucket attachment fell from the arm into the trench, narrowly missing the impacted worker.

The matter was raised internally with a team leader that day.  On 4 October 2023, the excavator involved in the incident was again used.  The impacted worker was unsatisfied with this and made an internal complaint, which resulted in an incident form being completed.  The form was placed on the desk of a team leader who was on leave at the time.  Upon the team leader returning from leave on 18 October 2023, it was recognized that the incident was notifiable.  The defendant notified the regulator of the incident on 19 October 2023, some three weeks after the incident.  

The defendant failed to immediately notify the regulator of the incident, as is required by section 38(1) of the Work Health and Safety Act 2011 (‘the Act’).  Prior to the matter being reported, the fault with the quick hitch was remedied, the use of the excavator continued, and the incident site was not preserved.  As a result of the late notification, Workplace Health and Safety Queensland (‘WHSQ’) were not able to properly investigate the state of the plant or the worksite.

In sentencing, Magistrate McGarvie had regard to the maximum penalty for the offence, the defendant’s plea of guilty, and its previous good character.

Her Honour had regard to the objects of the Act, noting that workplaces must protect workers and other persons against harm to their health, safety and welfare, through the elimination or minimisation of risks arising from work or from particular types of substances or plant.

Her Honour noted that a notifiable incident had occurred where there was a clear and obvious risk of serious injury to a worker, arising from a piece of plant which was defective, and that the defendant did not comply with its obligations to notify WHSQ of the event.  Her Honour indicated that the delay meant that the equipment was repaired before WHSQ had the opportunity to investigate.

Her Honour had regard to the steps taken by the defendant after the incident to overhaul the way in which incidents are reported, including implementing a new electronic system.

Her Honour had regard to the authorities placed before her, noting distinguishing features for each.

In considering all matters placed before the court, her Honour imposed a fine of $5,000 and exercised her discretion to not record a conviction.

OWHSP contact: enquiries@owhsp.qld.gov.au