Australia, C&L, CICA, Cranes & Lifting, Features, Industry News, Safety

Managing safety risks in the work place

The steps that a director can take to meet their statutory WHS duty of care has been clearly explained in the recent decision of SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble (Miller) .

In this article, we (Holding Redlich) examine the decision in Miller in which the director successfully defended charges laid against him with the Court outlining the practical steps that he took to avoid a conviction.

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The duty of care

All jurisdictions in Australia, other than Victoria, have adopted the model WHS Act which imposes a primary duty of care on a person conducting a business or undertaking (PCBU) to take “reasonably practicable” steps to ensure the safety of its workers and others. To discharge its duty, a PCBU must consider and implement reasonably practicable controls. In Victoria, the same duty is imposed on an employer. Company directors, in their capacity as “officers” of the PCBU, also have a separate personal duty to exercise due diligence to ensure that the PCBU complies with its primary health and safety duty. This requires directors to adopt a proactive approach to health and safety and to take reasonable steps to ensure that there are effective systems in place to identify and manage safety risks as they arise in the workplace. In Victoria, a similar obligation on officers exists by imposing liability on officers for breaches by the company if it is attributable to the officer failing to take reasonable care.

The facts

Miller Logistics Pty Ltd (Miller) is a freight distribution company with eight transport depots located throughout NSW and the ACT. Zentry Pty Ltd (Zentry) was contracted to provide freight services at Miller’s transport depot in Tamworth, NSW. Zentry employed truck drivers who would use Miller’s depot to load and unload their trucks.

Prior safety notices from SafeWork

In the lead up to the incident, SafeWork issued three improvement notices to Miller over three years in relation to the lack of traffic management controls at its Yennora, Beresfield, and Tamworth  depots. 

 On 23 October 2017, SafeWork issued a notice to Miller’s Yennora depot, ordering Miller to develop and implement a documented traffic management plan to control the interaction between forklifts and truck drivers (Yennora Notice).

 On 30 September 2020, SafeWork issued a notice to Zentry in relation to its operations at Miller’s Beresfield depot. This notice was also provided to Miller and cited similar safety concerns, highlighting the insufficient traffic management controls in place to separate pedestrian and forklift traffic (Beresfield Notice).

 On 30 October 2020, just five days before the incident, SafeWork issued an improvement notice to Miller’s Tamworth depot. This notice ordered Miller to rectify the very same traffic control risk that materialised on the day of the incident (Tamworth  Notice).

Miller’s response to the notices 

Miller employed a compliance manager, Mr Hayter. In response to the Yennora Notice, Mr Hayter:

 sent an email to all depot managers, including Tamworth, announcing the introduction of fortnightly toolbox talks to ensure workers maintained a three-metre distance between forklifts and pedestrians (3-metre rule). 

 circulated the toolbox documents and required depot managers to provide a copy of the forms, signed by each driver who attended the toolbox talk. 

 asked the Operations Manager to follow-up with any depot managers who failed to return the signed toolbox  forms. 

 created a template traffic management plan for the Yennora depot and forwarded a template traffic management plan to the other depots, including the Tamworth depot. 

In response to the Beresfield Notice, Mr Hayter personally attended the Beresfield depot to update the existing traffic management plan. He also arranged to have the lines repainted to better delineate pedestrian and forklift  traffic.

In contrast, after SafeWork issued the Tamworth Notice, Mr Hayter did not visit the Tamworth depot and assumed that there was a traffic management plan  in place. There was no evidence that the Tamworth manager did anything with the template that was sent to them by Mr Hayter.

The incident

On 4 November 2020, Mr Herden, a truck driver employed by Zentry, was assisting another truckdriver, Mr Hill, to load and secure his B-Double trailer at Miller’s Tamworth depot. Mr Herden was instructed by Mr Hill to search for a smaller freight pallet that would fit beneath the mezzanine level of the B-Double trailer. While searching for a suitable pallet, Mr Herden crossed the loading zone and was struck from behind  by a forklift being operated by another worker employed by Miller. The forklift was being driven with a full pallet, raised so high above the ground that it obstructed the driver’s line of sight. Mr Herden suffered significant injuries as a result.

At the time of the incident, despite the previous improvement notices, there were no floor markings or physical barriers in place to separate pedestrian and forklift traffic at the Tamworth depot. While workers were encouraged to adhere to the 3-metre rule, this was not enforced by the Tamworth depot manager. There was also no updated traffic management plan in place at the Tamworth depot.

The judgment against the company

Miller unsuccessfully defended the charge brought against it under section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act) for having failed to comply with its health and safety duty, which ultimately exposed Mr Herden to a risk of death or serious injury. 

The Court held that Miller was not only on notice of the risk due to the Tamworth Notice but should have reasonably known that “nothing short of total separation of forklifts and pedestrians was adequate to ensure safety”. Despite this obvious risk, the only precaution adopted by Miller at this depot was the 3-metre rule which was loosely enforced.  A designated loading and unloading zone, line marking, pedestrian exclusion zones and physical barriers could all have been implemented as higher level controls compared to the administrative control regarding keeping 3-metres away from mobile plant.

The judgment against the director

Miller’s sole director, Mr Doble was charged as an “officer” of Miller under section 27 of the WHS Act for failing to exercise due diligence to ensure that Miller complied with its health and safety duty. SafeWork alleged that Mr Doble breached his duty to exercise due diligence by failing to:

 ensure that Miller had appropriate resources and processes to eliminate or minimise health and safety risks arising out of its operations; and 

 verify that the resources and processes were being implemented at Miller’s Tamworth depot.

In finding Mr Doble not guilty of any offence, the Court found that Mr Doble “took an active interest” in work health and safety as Mr Doble:

 employed Mr Hayter as a compliance manager to deal with work health and safety at each of Miller’s depots and as the “primary process or resource” for managing safety. As Mr Hayter had been responsible for health and safety within the business during this period, Mr Doble was entitled to reasonably rely on the information provided by Mr Hayter.

 attended weekly management meetings where he was briefed on health and safety matters by Mr Hayter.

 followed-up safety issues at the next management meeting to ensure the proposed safety measures had been implemented at each depot.

 remained informed about updates to the traffic management plans.

 personally attended each depot and instructed Mr Hayter to immediately fix any health and safety issues which he observed.

 attended meetings with the depot managers to discuss Mr Hayter’s compliance measures.

 signed-off on updated work health and safety policies prepared by Mr Hayter.

 directed supervisors to chase-up any workers who disregarded safety instructions provided by their respective depot manager.

 promptly responded to health and safety issues irrespective of the  expense.

Lessons learned from the decision

The steps taken by the director in Miller demonstrates that an officer will comply with their duty of care if they take a proactive approach to ensure properly qualified and experienced managers are employed to implement an WHS management system, even if the system may fail on a particular occasion. The fact that Mr Doble was actively receiving information about the effectiveness of the operations and how Mr Hayter was managing the processes in place, was sufficient for him to discharge his duty of care.

This approach can be contrasted to the earlier NSW decision of Inspector Ken Kumar v David Aylmer Ritchie (Ritchie which involved a similar structured business to Miller. In Ritchie, a company director was successfully prosecuted under the former occupational health and safety (OH&S) framework following an explosion at one of the company’s wash bay facilities which resulted in the death of an employee. 

At the time of the incident, Mr Ritchie was a director of Owens Container Services Australia Pty Ltd (Owens) which repaired, cleaned and stored shipping containers and tanks. 

As part of its business, Owens operated multiple tank wash bay facilities along the East coast of Australia. 

On the day of the incident, a worker was killed after an explosion resulted from using a highly volatile cleaning spray and a high pressure water spray gun to remove the remaining resin solution from the tank. 

The evidence was that an audit of the site would have revealed that the depot had continued to use a spray that they had been informed was too dangerous and should be discontinued.

Although Mr Ritchie was based in New Zealand and, like Mr Doble in Miller, had relied heavily on the General Manager, as well as the depot managers at each facility, to keep him informed about the day-to-day operations of the business, he had failed to exercise “all due diligence” to prevent Owens from breaching its health and safety duty under OH&S laws. In particular, Mr Ritchie had failed to: 

 obtain information about the nature of the business and the specific risks involved with operating a wash facility and to ensure that a risk assessment had been undertaken for that process.

 verify the qualifications of the General Manager and Human Resources Manager appointed to oversee safety at the facility when they did not hold such qualifications.

 seek expert advice to mitigate the risks and ensure the safety of workers on site.

 ensure health and safety officers with appropriate training were employed.

 ensure safety audits were conducted by a person with proper training.

 ensure safety concerns were brought to his attention following three serious injuries in the wash bay facility during the previous year. 

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