On 23 March 2021, a produce business was sentenced in the Bowen Magistrates Court for failing to comply with its primary health and safety duty, pursuant to section 19(1) of the Work Health and Safety Act 2011 (‘WHS Act’), and exposing an individual to a risk of death or serious injury, contrary to section 32 of the WHS Act. Magistrate Morton imposed a fine of $150,000 and declined to record a conviction.
The defendant company operated a produce business and employed both permanent and seasonal workers. On 18 March 2019, several workers were planting capsicum seedlings. One worker, who had been employed by the defendant for approximately nine years, was performing duties as a tractor driver. A planter was attached to the tractor he was driving. Six other workers (the planting crew) sat in plastic seats built into the planter, placing seedlings in the ground as the tractor moved slowly across the paddock in “creeper mode”. Later that day, several members of the planting crew witnessed the driver dismount the tractor and restock seedling trays in the planter whilst the tracker was underway. Approximately 10 minutes later, members of the planting crew heard a cry for help and subsequently found the tractor driver under the planter’s wheel. They did not observe how he ca,e tp ne yjere The tractor driver died as a result of his injuries.
Dismounting the moving tractor had been common practice; however, the defendant introduced a policy prohibiting it in mid-2018. The defendant’s induction materials indicated workers should “never get off a moving tractor”, with records indicating the deceased was inducted in February 2019. Despite this, some workers indicated they were unaware of the prohibition. The deceased was reprimanded for dismounting the moving tractor three times in the weeks prior to the incident. The defendant failed to ensure its procedure was enforced. It was reasonably practicable for the defendant to provide adequate training and instruction to enforce the policy, and to provide the deceased with alternative duties or supervision to ensure he complied with the policy.
Magistrate Morton took into account the defendant’s guilty plea; though not early, it nevertheless saved the costs of proceeding to trial. His Honour noted that the defendant had implemented policies for worker safety but was aware this policy was not followed. He commented that the incident could have been avoided if the defendant had enforced the policy more forcefully. His Honour observed the clearly severe consequences of the risk, the very real probability of the risk and that the measures that could have been taken to avoid the incident were not burdensome or inconvenient.
His Honour had regard to the defendant’s business as a small company and the personal impact on the directors, who had employed the deceased for nine years. His Honour took into account the defendant's lack of prior convictions, and its offers of financial and other support to the deceased's family and other workers. His Honour referenced the purposes of the legislative scheme, the application of the hierarchy of controls and noted that risks must be minimised at every opportunity. His Honour exercised his discretion not to record a conviction.
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Sections 19(1) and 32 Work Health and Safety Act 2011