It is an expected and necessary part of work health and safety (WHS) plans that all new workers receive relevant WHS training. A recent decision in the NSW District Court (the Court) has highlighted the need for employers to also re-induct or provide refresher training to workers when they are transferred to a different department or location.
In SafeWork NSW v Crawfords Freightlines Pty Ltd  NSWDC 442, Crawfords Freightlines Pty Ltd (the Employer) pleaded guilty to failing to comply with its primary duty and in doing so, exposing a worker to the risk of death or serious injury in contravention of section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act).
The Employer operated a business in road freight transport and transported aluminium products in shipping containers. The worker was employed as a forklift driver and was initially undertaking work in the “General Division” which required the worker to unload and load products into tankers.
Upon commencement, the worker was inducted into the Employer’s safe operating procedures (SOPs) for operating a forklift truck and for unloading and packaging aluminium.
In the General Division the worker was not required to work in shipping containers or to load or unload aluminium products. After six months, the worker was assigned to work in the “Alloy Department” where he was required to load aluminium products into a shipping container, a task that he had never performed before.
The aluminium billets were transported and loaded into the shipping container by the forklift operator and another worker was required to place a piece of cardboard between the aluminium bundles to prevent them from rubbing together.
In his first week in the Alloy Department, the worker was working in the shipping container, cutting and placing the cupboard between the billet loads. While working, a 2.3 tonne load of billets on the tines of a forklift shifted and fell on the worker, pinning him to the wall of the container ship. The worker suffered a fractured left leg and right wrist which required surgery and the worker was also impacted psychologically as a result of the incident.
The SOPs did prohibit workers from remaining in the shipping container while it was being loaded but there was no specific prohibition against remaining in the shipping container for this task. Following the incident, the Employer changed the systems of work and now required the forklift operator to load and pack the aluminium billets in the containers. All workers were required to undertake refresher training.
SafeWork NSW identified the following reasonably practicable measures the Employer could have taken to eliminate or minimise the risk to workers, including:
In setting a penalty, the Court took into account a number of factors including the obvious and foreseeable nature of the risk, the likelihood of the risk occurring, that safety measures could have been easily implemented, the forklift guidance material available, the potential risk of injury or death, and the actual injury suffered by the worker. The Court found that the Employer’s culpability fell within the lower half of the midrange.
The Court also considered the need for deterrence as well as the substantial emotional harm caused by the incident.
The Employer was convicted and ordered to pay a fine of $90,000 (inclusive of a 25% deduction for an early guilty plea).
Lessons for employers
This case serves as a reminder to employers of the importance of regular training. At a minimum, employers must ensure that workers receive relevant WHS training by appropriate supervisors or trainers before work is commenced. It may also be appropriate to include commencing work with regular competency assessments undertaken.
Where employees may be required to work in different sections or departments, they must receive the relevant training and induction to that section or department. This is particularly important in circumstances where during the COVID-19 pandemic, workers may be required to assist in different departments or carry out tasks that they may not usually perform. Penalties for breaches of WHS legislation are substantial and workplace incidents can significantly effect the lives of workers and their families.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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