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The NSW District Court's recent decision in SafeWork New South Wales v Austral Hydroponics Pty Ltd and Safe Work New South Wales v Eang Lam [2015] NSWDC 295 has provided some insight into how courts may view non-compliance with approved codes of practice.

The case involves a breach of obligations under the Work, Health and Safety Act 2011 (NSW) (WHS Act) by Austral Hydroponics Pty Ltd (Austral) and its Director, Mr Eang Lam, and demonstrates the Courts' willingness to hold officers to a high standard of due diligence where an applicable code of practice exists. Austral was fined $200,000 and Mr Lam was fined $20,000, which were both then discounted by 25% to take into account their early guilty pleas. 

The case highlights the need for persons conducting a business or undertaking (PCBUs) and their officers to look beyond the wording of the WHS Act and WHS Regulations to the requirements of approved codes of practice to ensure their obligations are being discharged.

Facts

Austral conducted a business growing greenhouse truss tomatoes and, at the time of the incident, it had five employees. All employees were supervised by Austral's sole director, Mr Lam.

On 7 March 2013, Mr Lam directed one of its workers, Mr Savoeun Nuon, to remove pliable plastic sheets from the roof of a hot house at Austral's premises.

Mr Nuon used a ladder to climb onto the roof of the hot house and stood on the gutter. As Mr Nuon was trying to pull away damaged plastic, he lost his balance and fell backwards approximately 2.5 metres.

Mr Nuon's spine was fractured, which caused spinal cord damage and tetraplegia. He remained in hospital until his death from respiratory failure and recurrent aspiration pneumonia in late August 2014. At the hearing of the charges, the prosecution did not allege that Mr Nuon's death was caused by the injuries he sustained in the fall.

Offences

Austral pleaded guilty to an offence under s 19(1) of the WHS Act in that it exposed its worker to a risk of death or serious injury.

Mr Lam also pleaded guilty to an offence that, as an officer of Austral, he failed to exercise due diligence to ensure that Austral complied with its duty under the WHS Act. He conceded that his failure to exercise due diligence had exposed Mr Nuon to a risk of death or serious injury.

The Code of Practice

In December 2011, Safe Work Australia published  a Code of Practice titled: 'Managing the Risk of Falls at Workplaces" . The Code of Practice sets out the obligations of employers to manage the risk of employees falling and includes obligations to conduct risk assessments , provide training for tasks where there is a risk of falling, and use fall prevention or arrest devices where reasonably practicable. 

The decision

In assessing the objective seriousness of the offences committed by both defendants, Judge Scotting stated "The risk posed by workers falling from the roof of the hot house was foreseeable and obviously so. The ways in which that risk could be minimised were set out in the Code of Practice which was readily available to both offenders if any enquiry had been made".

Importantly, as to Mr Lam's failure to discharge his obligations of due diligence, Judge Scotting stated: "Mr Lam failed to exercise due diligence by taking reasonable steps to ensure compliance with the Code of Practice. No risk assessment of the task being undertaken by Mr Nuon had been conducted and there was no safe work procedure in place. Mr Nuon was not adequately supervised, or provided with assistance in undertaking the task. Mr Lam did not take reasonable steps to ensure that workers were directed not to work on the roof of a hot house unless a risk assessment had been conducted and control measures to minimise risks to safety were implemented".

What does this mean for PCBUs and officers?

Codes of practice, such as the Code relating to falls, are admissible in court proceedings as evidence of a breach of duty under the WHS Act, however, they are not legally binding.

Historically, courts have looked to the codes of practice as a means of determining what is known about the risk or hazard in question, the means available to eliminate or control the risk and, by implication, whether the defendant took all reasonable steps to eliminate or control the risk in question.

In this case, however, Mr Lam's failure to ensure compliance with the code of practice was directly linked to his failure to exercise due diligence.

Lesson learned

PCBUs have a duty under the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers.

Officers have a duty to exercise due diligence. This duty requires officers to take reasonable steps to ensure a PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under the WHS Act.

As a first step:

  • PCBUs should find out what, if any, codes of practice are applicable to their business and incorporate them into their systems of work, and
  • officers should take steps to ascertain that the PCBU is ensuring, so far as reasonably practicable, the incorporation of relevant codes of practice into the PCBU's systems of work.

Taking these additional steps will help a PCBU and its officers to avoid prosecution should an incident occur or, alternatively, to secure lower penalties should a Court find an offence proven.

We would like to acknowledge the contribution of Matthew Parker to this article.
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