On 11 August 2022, a company who runs a business supplying educational materials throughout Australia was sentenced in the Holland Park Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty under section 19(1) of the Act.

The family-owned company has been operating for over 25 years and employs thousands of staff throughout Australia. Many of the workers are casual workers, employed ‘seasonally’ during the ‘back to school’ busy period. On 9 February 2021, a 27-year-old worker who had been casually employed for three months in the warehouse dispatch area, suffered a fractured skull when he was operating a forklift alone in the warehouse, loading empty pallets onto a racking system, when four of the unsecured pallets (each weighing around 35 kilograms) fell from a height of almost six metres and at least one struck him in the head. He required surgery and was hospitalised for eight nights and unable to work for an extended period.

The injured worker held a licence for the operation of the forklift, and, while the defendant provided some ‘on the job’ training and unwritten procedures, it had not undertaken a risk assessment in relation to the use of the forklift, nor did it have in place a safe operating procedure for it, or for the use of it to move and store pallets on pallet racking, in circumstances where there were risks which were peculiar to the site and the particular task which was being performed, for example, how many pallets could be lifted at one time, that the load should be secured if it extended above the fork arm backrest, or how to safely store the pallets in the racking.

Post-incident, the defendant introduced a ‘Safe Operating Procedure’ for the storage of items in the pallet racking. By its plea, the defendant accepted that there were steps which, in all the circumstances were reasonably practicable, and, if taken, would have reduced the risk. It also accepts that it exposed workers to a risk of death or serious injury as a result of its failure to comply with its duty, and the serious injuries sustained by the injured worker were a manifestation of the risk.

In sentencing the company, A/Magistrate Ganasan took into account the many mitigating features, including the early plea of guilty, that the defendant had no prior WHS convictions, that it is a family-owned company which cooperated with the investigation, showed remorse and continued to support and employ the injured worker. Her Honour accepted that the risk existed over the entire charged period (3 months) and that whilst there was a system in place at the time in relation to ensuring stock was wrapped and secured when stored at height, there was not a system in relation to the empty pallets, but that steps had been taken since the incident.

Her Honour had regard to the need for general deterrence and the need to punish the defendant in a way which was just in all the circumstances. The company was fined $70,000. No conviction was recorded.

OWHSP contact: enquiries@owhsp.qld.gov.au