A recent case has cleared the business Director of due diligence breaches, while at the same time finding that the business itself breached due diligence requriements when it failed to take steps to prevent an employee being injured by a forklift. The case is a reminder to all businesses that the safety of their workplaces is something that requires active management, and that Directors are culpable if they can not demonstrate that they have exercised appropriate due diligence.
Case Review
In this case a worker, a forklift driver who was assisting with the loading of a visiting truck, was struck by a forklift that was stacked high with pallets. The worker was seriously injured.
In determining the penalty Judge Russell found that the business could have taken steps with “little or no burden or inconvenience” to prevent the incident. Further it was noted that only days earlier SafeWork NSW had issued an improvement notice to the site noting a need to improve traffic management controls and practices.
Judge Russell noted that the “risk of collision between a forklift and a worker on foot was known to exist” at the businesses other locations and that the business “ought to have know the risk existed” at all locations. He noted that “There was a significant likelihood that the risk would occur, particularly in areas where forklifts were working on one task, and workers on foot were employed on another task. Neither would have been looking out for each other. There was ample guidance material advising PCBUs of the risk…Steps were available to eliminate or minimise the risk”.
The Judge ordered the business to pay $450,000 in penalties and to pay the costs of the prosecution.
At the same time the Judge noted that the Director had taken steps to exercise due diligence because he had taken an “active interest” in safety issues and had engaged a WHS manager.
Learnings for all businesses
“The learnings from this case are twofold. First is a clear message to all businesses to take a proactive and honest look at the work and work practices onsite and to put into place the controls needed to keep staff safe”, explains ACAPMAs Elisha Radwanowski.
“But the second is more subtle, yet equally important. It is a message to business Directors. You have a personal responsibility to discharge due diligence in ensuring that your business is meeting its safety obligations. This means you need to have an understanding of the safety requriements, the operations onsite and the broader trends in incidents, controls and approaches of your business and industry to common problems. If you can demonstrate that, then you will not face the personal penalties in the event of an incident”, concludes Elisha.
Here to help
Safety Highlights are things to consider, implement and watch out for in your business. They are provided as general information for you to consider and do not constitute advice. You should seek further advice on your situation by contacting your legal advisor. ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au , it is free for members. ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/ for more information.
Elisha Radwanowski BCom(HRM&IR)
ACAPMA
