On 3 June 2021, the defendant pleaded guilty and was 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 health and safety duty. The horticulture business held a duty under section 20 of the Act, as a person with management or control of a workplace, namely a produce farm.
In October 2017, the defendant organised for a contractor to pick pumpkins at its workplace, located at Home Hill. As part of the agreement, the defendant supplied the plant, including a tractor and picking trailer. The contractor engaged workers, primarily backpackers, to carry out the picking work. On 31 October 2017, a foreign worker on his second day at the farm deteriorated throughout the day and ultimately died from multiple organ failure due to heat related illness.
A Workplace Health and Safety Queensland investigation identified that there was no nearby area provided for workers to rest and shade themselves from direct exposure to the sun, and that the trailer and conveyor attachment did not have shade structures installed in them.
A report obtained from a heat related illness expert considered there was potential of heat induced illnesses occurring if conditions were not addressed. This report outlined the safety controls that could have been implemented to address the risk, including the provision of shade for rest areas, a thermal risk assessment, the provision of training in relation to heat stress management, and moving the picking to cooler times in the day.
In sentencing, his Honour Magistrate Ken Taylor had regard to the maximum penalty of $1,500,000 which reflected the seriousness of the offence. His Honour had specific regard to the need for general deterrence in matters such as this, noting that the remorse and subsequent steps taken by the defendant lessened the need for specific deterrence.
His Honour had regard to the fact that the defendant was in exclusive control of the workplace and that the defendant could not diminish his responsibility through the use of contractors. His Honour had regard to the victim impact statements of the family and partner of the deceased which showed the death had a remarkable impact on those close to him.
In mitigation, His Honour took into account the post incident steps the defendant had taken to improve workplace practices including the amendments to the trailers to include shade and the director’s closer contact with workers including organizing additional training for all pickers on the defendant’s farm.
His Honour also considered the financial situation of the defendant and accepted that a substantial fine would have a significant impact. His Honour accepted that the defendant was remorseful for the death of the worker. His Honour acknowledged the plea of guilty and found that whilst late still entitled the defendant to some discount in penalty, as the witnesses were not required to attend and give evidence.
His Honour considered that whilst the seriousness of the offence would have lent itself to a fine at the upper end of the range submitted by the prosecution, namely a fine of $120,000, the mitigating factors warranted a lesser fine. His Honour did not record a conviction.
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Sections 20 and 32 of the Work Health and Safety Act 2011