On 16 August 2022, a hardware store company and its sole director were sentenced in the Townsville Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (the Act’), having failed to comply with its primary health and safety duty. The company pleaded guilty to failing to comply with its primary duty to ensure workers’ health and safety, thereby exposing them to the risk of death or serious injury. The director pleaded guilty to failing to exercise due diligence to ensure the company complied with its duty, thereby resulting in the exposure to risk.
The company conducts a hardware retail business from a store in Townsville and another in Rockhampton. At the relevant time, it employed 35 workers to carry out front and back-end operations. The routine tasks included moving pallets of stock to and from truck trailers. Workers at the Townsville store had adopted an informal work procedure for unloading the semi-trailer that the company used for stock delivery. The semi-trailer had two decks. When a forklift was used to lift pallets off the top deck, a worker would act as the ‘spotter’ by standing on the deck and ensuring the forklift tines were inserted into the pallets.
The top deck was about 2.5 metres from the ground. It was hazardous because there was nothing to prevent a person from falling off it. A person on the top deck was therefore at risk of death or serious injury from a fall from height.
The company had written procedures for loading and unloading stock which contemplated the possibility that a worker could climb onto a truck trailer when doing such work. However, they did not prescribe how workers should safely move stock from a truck. On 9 June 2020, a traffic management concern prompted a statutory notice to be served on the company, requiring it to improve its system of work for moving, loading and unloading stock by forklift. On 8 July 2020, the company director issued workers with a “truck unloading procedure”. It stipulated five traffic-related controls, but it did not address how workers should safely move stock from a truck.
On 14 August 2020, the company failed to ensure, as far as reasonably practicable, workers’ health and safety by not providing a safe system of work for loading and unloading stock from the semi-trailer. The system of work was unsafe because workers were not prohibited from accessing the top deck of the semi-trailer to load or unload stock. The company director was obliged to exercise due diligence by taking reasonable steps to ensure the company had implemented a safe system of work. The director failed his duty of due diligence by not stopping workers from accessing the top deck of the semi-trailer.
The failures exposed workers to the risk of death or serious injury. On the morning of 14 August 2020, the risk materialised for one worker when he was on the top deck of the semi-trailer. The store manager had tasked him and another worker to unload pallets of stock from the semi-trailer. As he had done on prior occasions, he was the spotter on the top deck while the forklift was being operated to unload pallets from it. After a pallet was driven away, the worker fell off the top deck of the semi-trailer. He hit the ground and sustained severe head injuries.
Moreover, on this date, the company, acting through the store manager, had directed the other worker to operate the forklift even though she did not hold a forklift licence. She had completed a forklift operation course in June 2019 but did not apply for a licence within time. In July 2020, she re-enrolled in a forklift operation course and was thereby permitted to operate a forklift only under supervision. Her supervisor had not yet arrived at work when she was operating the forklift.
In sentencing, Magistrate Viviana Keegan acknowledged the “catastrophic” physical and psychological impacts that the injured worker suffered and continues to suffer, which were detailed in a tendered victim impact statement.
Her Honour observed that general deterrence is a very important sentencing consideration. Magistrate Keegan accepted that the company and the director had “quite clearly” failed in their obligations owed to their employees to protect them from risk and injury. The risk of death or serious injury in the circumstances was “obvious, foreseeable and easily remedied” with a work instruction to prohibit workers from being on the top deck of the semi-trailer. Her Honour accepted it was of some relevance that the company and the director had a prior opportunity to review its unloading procedures as a whole. However, that was moderated by the fact that the prior opportunity did not specifically relate to unloading procedures with respect to the semi-trailer.
In mitigation, her Honour acknowledged that the company and the director had pleaded guilty and were remorseful. They had cooperated with the authorities and accepted responsibility for the serious injuries sustained by the injured worker. Her Honour noted that the company and the director are both of good character and had no prior history despite a lengthy period of operation without incident. Through the standing offer of re-employment made to the injured worker, her Honour accepted that the director has acknowledged his ongoing moral responsibility towards the worker. Furthermore, after the incident, the company had changed its procedures to avoid a recurrence.
After considering the sentencing comparatives placed before the Court, Magistrate Keegan determined that the company and the director should respectively be fined $50,000 and $10,000 for the Category 2 offence that each had committed. Her Honour fined the company a further amount of $2,000 for the offence relating to the worker operating the forklift without a licence. Her Honour declined to record convictions in view of the defendants’ mitigating factors.
OWHSP contact: email@example.com
Charge 1: Sections 19(1), 32, Work Health and Safety Act 2011; Charge 2: Section 43(2), Work Health and Safety Act 2011
Sections 27(1), 32, Work Health and Safety Act 2011