Details of successful prosecution against E214324

Incident description

The defendant held duties under s.268 (2)of the Work Health and Safety Act 2011 being the sole director of an earth moving company.

An investigation was being conducted in relation to an incident in which a worker sustained injuries while operating an excavator.

On or about 2 July 2013, in response to a request by an inspector for a copy of work procedures for operation of the excavator, the defendant provided a number of Safe Work Method Statements (SWMS) for operations of the company including one relating to the operation of a large excavator.

On the basis that the injured worker had on the face of the document been consulted in the development of the SWMS and that its contents had been approved and communicated to him, the investigation took a course which it may not have, had it been apparent that such a document had not been developed with the worker's consultation and approval.

The defendant knew that it was misleading in that it purported to bear the signature of a worker, when in fact it didn't. In breach of section 268(2), the defendant had produced a document in complying or purportedly complying with the Act that was false and misleading.

Court result

The defendant pleaded guilty in the Ipswich Magistrates Court on 23 February 2017 to that charge, having failed to meet his work health and safety duties and was sentenced.

Magistrate Shepherd fined the defendant $1500 and ordered professional and court costs totaling $961.40. The court made an order that no conviction be recorded.

In reaching a decision, the Magistrate acknowledged that the offence hadn't contributed to the injury sustained by the worker who was experienced in excavator operation.

The document was provided via a computer system with which the defendant was unfamiliar, and the court accepted that he had been careless rather than deliberately deceptive and wasn't acting negligently.

His Honour confirmed that he could draw an inference that the purpose of production of the false document was to avoid a larger investigation being conducted by the inspector and while this oversight was important, it was not as serious as if the document had been manufactured after the injuries sustained by the worker. A timely reminder that in dealing with the safety of workers it is important that businesses adhere to the letter of the law.

In deciding penalty, Magistrate Shepherd took into account the defendant had not been prosecuted previously for any work health and safety breach and co-operated with the investigation. The matter had been listed for trial but the defendant ultimately entered a plea of guilty.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the construction industry where there is exposure to risks of injury from mobile plant, duty holders should not produce documents that was false and misleading.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding and implementing control measures associated with the risk of hazard, obligation holders should consider:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011

Details