The model Work Health and Safety Act (Model Act) imposes a duty on officers to exercise due diligence to ensure that the person conducting a business or undertaking (PCBU) complies with safety duties.
In SafeWork NSW v Macquarie Milling Co Pty Limited; SafeWork NSW v Samuels  NSWDC 111, a company and its sole director pleaded guilty to, and were convicted of, failing to comply with their duties to a worker, including a failing on the part of the director to comply with his due diligence duty.
In October 2016, a mill labourer was operating a hay processing machine when the conveyor belt to the machine became blocked. Whilst the machine was still on, the worker accessed the conveyor belt and attempted to clear the blockage with a metal rod. As he was doing so, his clothing was caught and he was pulled into the rotating shaft. The worker suffered a deep laceration to his left hand while his left arm and shoulder were also jammed against the machine.
Macquarie Milling and the sole director were each charged with breaching their safety duties and failing to comply with a health and safety duty in breach of section 32 of the Work Health and Safety Act 2011 (NSW).
The NSW District Court found that Macquarie Milling did not have any documented work health safety systems in place at the time of the incident, and that training of staff was through the “buddy” system with no competency assessments undertaken. Workers had also removed a guard on the machine and developed a practice of bypassing the “kill switch” doors by using a ladder to reach the machine.
The Court found that the risk of injury was “obvious, identifiable and foreseeable” and that had simple remedial steps been undertaken, the risk could have been avoided. The Court determined Macquarie Milling’s culpability was in the mid-range and ordered it pay a total fine of $150,000 as well as SafeWork NSW’s costs.
In relation to the sole director, the Court found that:
- He failed to exercise due diligence to ensure that Macquarie Milling undertook a risk assessment which identified removing blockages as a high-risk activity, that there was an adequate system in place to ensure that he would become aware of near misses and there was a safe operating procedure or safe work method statement for safely removing blockages from the machine.
- Even though he was on site daily, he had failed to gain an understanding of the hazards and risks arising from the missing guard covering the machine and the Workers accessing the machine with ladder and bypassing the “kill switch”.
The Court ordered the sole director to pay a fine of $22,500 as well as SafeWork NSW’s costs. In addition, the Court made orders requiring the director to undergo training and prepare a due diligence plan.
Specifically, the Court ordered that the director:
- Undertake, within six months and on-site if available due diligence training for senior managers and company directors and a course in work health and safety risk management for supervisors and directors.
- Prepare a work health and safety due diligence plan for himself and officers of Macquarie Milling which is to include how officers will take steps to exercise with due diligence.
- Enter into a court-ordered WHS undertaking containing conditions including that he complete the training and project plan and provide evidence to the Court of this and not to commit further work health and safety offences.
Lessons for employers
Officers under the Model Act have a separate personal and higher duty to ensure that there is compliance with WHS duties. As part of exercising due diligence, the Model Act requires officers to take reasonable steps to:
(a) Have an up-to-date knowledge of work health and safety matters, and
(b) Gain an understanding of the nature of the operations of the business and of the hazards and risks of the operations, and
(c) Ensure appropriate resources and processes to eliminate or minimise risks to health and safety from work are available and are used, and
(d) Ensure that the business has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and
(e) Ensure that the business has, and implements, processes for complying with work health and safety duties and obligation; and
(f) Verify the provision and use of the resources and processes outlined above.
This case is an important reminder to officers that they are required to actively comply with these duties and that the Courts will use all powers available to ensure compliance, including by directing them to undertake training.
The Court in this case also placed emphasis on competency-assessed training. It will no longer be sufficient for employers to provide on-the-job training to workers over a short period of time. Regular training and assessment of competency for undertaking tasks will be required to demonstrate that workers are appropriately trained.
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