Australia: Queensland local government safety failure costs life and fine

IN BRIEF - FAILURE TO IMPLEMENT TRAFFIC MANAGEMENT SYSTEMS CONSTITUTES BREACH OF WORK HEALTH AND SAFETY ACT

A large regional Queensland council has recently been convicted and fined for breaching the Work Health and Safety Act 2011 (Qld) (WHS Act) following the death of an employee during routine road works on a remote stretch of highway in November 2013. This case provides a reminder to employers who deal with traffic management of the need to implement a stringent traffic management system, consider employees' personal protective equipment needs and to ensure that employees adhere to safe work practices.

COUNCIL EMPLOYEE KILLED BY TRUCK IN TRAGIC WORK SITE ACCIDENT

The council employee was fatally struck as one of his colleagues reversed a truck down recently laid bitumen to further compact the road surface. During the incident, members of the public, who were queued in their vehicles at the road works, blasted their horns to try and attract the driver's attention to prevent the accident. A council foreman explained to the Court that the council employee had hearing difficulties and sometimes did not wear his hearing aids on-site. The council had four employees on-site at the time of the incident. The two employees who were not involved in the incident were busy performing other duties at the time of the accident. No one was ensuring traffic management or safety on the work site.

Townsville Magistrates' Court was told that the driver had not seen the employee in his rear view mirror and was unaware that he had hit his co-worker until he was alerted by a member of the public.

The Court found that although the council had performed risk assessments relating to other aspects of the job, it had failed to implement traffic management plans restricting the movement of workers around reversing plant equipment and had not used a spotter to assist the reversing driver down the roadway.

The Court found that these measures would have been reasonably practicable to implement, and failure to implement these measures constituted a breach of the WHS Act. Consequently, the council was fined $170,000.

CONSIDER ALL PERSONAL PROTECTIVE EQUIPMENT EMPLOYEES NEED TO WORK SAFELY

We understand that council will appeal this decision which—given the District Court decision in Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 (where the Industrial Court recently significantly increased a penalty on appeal)—could go either way in terms of increasing or decreasing the penalty. However, the lessons for all employers dealing with traffic management are clear:

• personal protective equipment includes any hearing or visual aids an employee needs to work safely
• to the extent that an employee needs such equipment to work safely (hearing aids, glasses, etc.), the employee must not be allowed to work without those aids
• if an employer does not insist on such safe work practices, in the event that there is a safety incident or near miss, the employer will likely be found to have breached the WHS Act and penalties will follow

SAFETY RISK MANAGEMENT INCLUDES REQUIRING EMPLOYEES TO DISCLOSE NECESSARY EQUIPMENT OR AIDS, IMPLEMENTING TRAFFIC MANAGEMENT SYSTEMS

To ensure that employers do what is reasonably practicable to manage risk, they should consider implementing:

• a requirement that employees disclose any equipment or aids they need to work safely. Such a request should be framed as a "safety consideration" so as to avoid any inference of discrimination
• where employees don't disclose that information, penalties may follow such non disclosures, provided that the basis for issuing such penalties is to drive improved outcomes
• traffic management systems must be implemented wherever workers and vehicles share a workplace, whether that be ports, factories, transport hubs, manufacturing facilities, schools and education facilities, and of course road works

Employers may want to consider seeking legal advice to implement these strategies.

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