Successful prosecution under the Work Health and Safety (WHS) Act in NSW
Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam  NSWDC 295
Safe Work NSW has brought a successful prosecution against a Company Austral Hydroponics Pty Ltd (Austral Hydroponics) and its Director Mr Eang Lam (Mr Lam).
This is one of the first successful prosecutions of a company and director under the Work Health and Safety Act 2011 NSW (WHS Act).
Austral Hydroponics operated a hydroponics greenhouse business which included (amongst other things) the growing of truss tomatoes. On 7 March 2013 Mr Lam, the sole director of Austral Hydroponics directed Mr Nuon to remove pliable plastic sheets from the roof of a hot house located on the business premises. Mr Lam provided no instructions to Mr Nuon on how to conduct the task and Mr Nuon had received no training for working at heights and Mr Nuon was not provided with any fall prevention systems, arrest devices or work positioning systems.
Mr Nuon commenced the task with the use of a damaged domestic ladder to climb onto the roof of the hot house and stood on the gutter whilst removing the plastic sheets. As a result of trying to pull away damaged plastic, Mr Nuon lost his balance and fell approximately 2.5 metres to the ground and suffered a fracture to his spine resulting in spinal cord damage and tetraplegia. Mr Nuon’s condition deteriorated and he was considered catastrophic requiring high care. Mr Nuon remained in hospital until his death in late August 2014 (Note the prosecution did not allege that Mr Nuon’s death was caused by the injuries sustained from the fall from height).
Mr Nuon informed WorkCover (now Safe Work NSW) that he learned how to perform the task he was performing at the time of the incident from other Austral Hydroponics workers and that it was normal practice to reach the roof by ladder and walk along the gutter.
Since the incident Austral Hydroponics had implemented the safe work systems including industrial fibre glass ladders, step ladders and fall arrest systems, including harnesses.
Austral Hydroponics was convicted and fined $150,000 along with Mr Lam who was also convicted and fined $15,000 and each received a discounted penalty sum, due to an early guilty plea. The maximum penalty for the Category 2 offence committed by Austral is a potential fine of $1.5 million and $300,000 for Mr Lam who was considered an officer of Austral.
What does this mean for your organisation?
In December 2011 Safe Work Australia published a Code of Practice entitled: ‘Managing the Risk of Falls at Workplaces Code of Practice’, which has since been revised in March 2015. The Code of Practice sets out obligations of employers to manage the risk of workers falling including, that risk assessments be conducted, training be provided in respect of tasks where there is a risk of falling, that fall prevention or arrest devices are used where reasonably practicable and that, where possible, such tasks are carried out on a solid construction.
Most notably as a result of a recent spate of fall from height incidents, Safe Work NSW is urging employers and workers across the State to be cautious, after two workers were killed and eight others seriously injured in fall from height incidents since the beginning of 2016. Similarly Workplace Health and Safety Queensland has prompted employers to reassess the effectiveness of their safety management systems.
From a spate of fall from height incidents including falls from a mobile scaffold, from roofs and from ladders this year resulting in either fatalities or individuals being seriously injured it should be reiterated that even incidents that have occurred from low heights can have devastating consequences.
The above case and warning from Safe Work NSW also reinforce the need for organisations to revaluate the effectiveness of their safety management system pertaining to fall from height risks, as well as directors and officers taking reasonable steps to demonstrate due diligence with respect to their work health and safety obligations.
Foremost, with regards to reviewing organisations safety management systems, simple measures may include worker induction and training, undertaking risk assessments, having safe work procedures for tasks and Safe Work Method Statements (SWMS) where required for high risk construction work activities.
Safe Work NSW have also released suggested controls for organisations to prevent fall from height incidents by:
- carrying out work on the ground or on a solid construction;
- providing a fall prevention device such as a secure fence, edge protection, working platforms or covers;
- providing a work positioning system which includes any plant or structure, other than a temporary work platform, that safely holds a worker in a work position; and
- providing a fall arrest system such as an industrial safety net, catch platform or safety harness system.
Furthermore, this case serves as a reminder to directors and officers to ensure that they exercise due diligence and take reasonable steps to:
- acquire and keep up-to-date knowledge of work health and safety matters
- gain an understanding of the nature of the operations of the business or undertaking of the organisation and generally of the hazards and risks associated with those operations;
- ensure that the organisation has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out;
- ensure that the organisation has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
- ensure that the organisation has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
- verify the provision and use of the resources and processes referred to in paragraphs c)-e).