Adopting a risk-based approach to managing your business will support your workers and executives by providing a safe and productive workplace, which will ensure the ongoing profitable viability of your business, write Greg McCann and Danielle Skinner.
Consulting with your workers regarding operating hazards and risks, and considering the requirements of the relevant safety laws and regulations, codes of practice in your jurisdiction and relevant Australian standards, will provide the knowledge to populate and implement a safety management system that is relevant for your business.
A safety management system that is compliant with AS 4801 is an excellent tool to ensure that you have a safe, productive workforce, so that the risk of incidents, injuries and fatalities is minimised and you avoid appearing as a defendant in prosecution proceedings.
It is also worth bearing in mind that employees or others who have been impacted by an incident or by activities of your business or undertaking, to whom you owe a common law duty of care, may commence civil proceedings to obtain significant damages.
Further, contractors involved in a workplace incident may also suffer a detrimental impact, which could lead to potential breach of contract proceedings.
Piling companies’ safety fines increased to $1.5 million
A recent decision of the Court of Appeal in Victoria reinforced the need for employers to be vigilant and thorough in their approach to health and safety. In the case DPP v Vibro-Pile (Aust) Pty Ltd & Frankipile Australia Pty Ltd, two companies received a doubling of the fines initially imposed from a conviction and sentence in the County Court for a fatal incident in May 2011, when a worker fell approximately 40 metres to his death. The incident involved the collapse of the top section of a pile driving rig at a building site in Southbank in Melbourne.
An employee of Frankipile Australia Pty Ltd was attached with fall protection devices to the top section when it collapsed. The piling rig was being operated by Vibro-Pile. The collapse was caused by a failure to insert particular bolts when erecting the piling rig.
The prosecution alleged that it was reasonably practicable for the employers to have:
• Identified and documented the risk of collapse
• Documented the correct procedure for the erection of the piling rig
• Provided the necessary induction and training for employees
• Supervised the erection of the piling rig to ensure the correct procedure was followed
According to the prosecution, such measures were reasonably practicable and readily available, given what the defendants knew or ought to have known about the risk.
Both companies entered a plea of ‘not guilty’ before the County Court of Victoria. The trial proceeded over 17 days. Both companies were found guilty and convicted of breaching section 21 of the Occupational Health and Safety Act of Victoria. The maximum penalty that each company faced was in excess of $1 million. The County Court imposed a fine of $350,000 against Frankipile and an aggregate fine of $100,000 against Vibro-Pile.
The companies appealed against the conviction and fines imposed, while the prosecution appealed against the manifest inadequacy of the fines imposed by the County Court.
On 24 March 2016, the Court of Appeal determined that leave to appeal against the convictions should be refused. The court allowed the prosecution appeal against the inadequate sentences imposed. The resentencing resulted in fines totalling $750,000 against each company.
Be proactive in your approach to workplace safety
To reduce the potential exposure of your business to risk, it is recommended that you:
• Identify the hazards and risks of your business or undertaking
• Consult with workers, contractors and the community
• Obtain legal advice as to the relevant laws, regulations, codes of practice and AS/NZ standards for your business operations
• Implement a safety management system that meets best practice.
Greg McCann and Danielle Skinner are lawyers in the Sydney office of Colin Biggers & Paisley.