SafeWork NSW case: refresher training and procedural failings cost employer $90,000

A failure to provide refresher training to a worker, after only six months of employment, has proved to be a significant contributing factor to a transport business being issued a $90,000 penalty, when the worker was pinned to a wall by 2.3 tonnes of aluminium.

The incident

The decision of SafeWork NSW v Crawfords Freightlines Pty Ltd [2021] NSWDC 442 involved a transport business (Crawfords) that specialised in transporting shipping containers loaded with aluminium products for export markets. To load its containers, Crawfords engaged licensed forklift operators.

The injured employee, Mr Asiata, commenced employment with Crawfords in March 2018. For the first six months of his employment, Mr Asiata had no involvement in loading the shipping containers with the aluminium billets, until he was transferred to the team that did this work in September 2018.

On 13 September 2018, Mr Asiata was assigned to assist another licensed forklift operator, Mr Tobin, with loading billets into multiple shipping containers. Mr Asiata’s task was to roll out sheets of cardboard that were placed between layers of the billets to stop the edges rubbing together during transit. The procedure adopted by Mr Asiata and Mr Tobin, required Mr Asiata to remain inside the shipping container as Mr Tobin brought loads of billets in on the tines of the forklift.

After following this procedure to load several containers without incident, Mr Asiata was again waiting inside a container when the current load Mr Tobin was carrying on the forklift became unbalanced and fell from the tines, pinning Mr Asiata to the container wall.

As a result of the incident, Mr Asiata sustained multiple fractures and was hospitalised for two weeks. He was also reported to have developed a psychological disorder following the incident.

Key factors contributing to the incident

Crawfords pleaded guilty to a category two offence of failing to comply with its primary duty of care under s 19 of the Work Health and Safety Act 2011 (NSW), an offence that attracts a maximum penalty of $1.5 million for a person conducting a business or undertaking (PCBU).

In imposing an initial penalty of $120,000, which was subsequently reduced by 25% to $90,000 in recognition of Crawfords’ early guilty plea, Judge Russell noted the following key factors that contributed to the incident occurring:

• When Mr Asiata commenced employment with Crawfords in March 2018, he received training in two safe operating procedures (SOPs) for the operation of a forklift and the unloading and packaging of aluminium respectively.

• Whilst both SOPs included instructions on precautions to be taken when using a forklift around other workers, neither contained any specific instructions about how to complete the task of loading a shipping container with billets—the task Mr Asiata was completing at the time of his injury.

• Mr Asiata was not provided with any refresher training in either SOP when he was transferred to the team responsible for loading the shipping containers, some six months after he commenced employment.

• Mr Asiata was performing the loading task for the first time on 13 September 2018 and was not given any prior instruction, training or supervision in the performance of the task by Crawfords’ Team Leader.

• Whilst Crawfords had a system in place for monitoring workers’ compliance with its SOPs, there was no evidence to suggest that this system was being implemented on site on the day the incident occurred.

Lessons for employers

The requirement to provide such information, training, instruction and supervision as is necessary to protect workers from health and safety risks when performing work for a business forms part of a PCBU’s primary duty of care under the harmonised work health and safety legislation that currently applies in all states and territories other than Victoria and Western Australia. It is therefore essential that all businesses have a robust training program in place.

The authorities in this area make it increasingly clear that a “one-size-fits-all” induction process that covers a wide range of policies, procedures and SOPs, with limited or no follow-up or refresher training, is simply not sufficient for a PCBU to discharge its primary duty. PCBUs also cannot afford to simply rely on accreditations such as high risk work licenses as evidence that a worker has received sufficient training to ensure they are able to perform their work safely.

We strongly encourage businesses to ensure their training programs are agile and responsive, with regular reviews conducted on SOPs, job safety analyses and risk assessments, so they remain accurate and reflective of the actual practices in the workplace. Training processes should ideally include both written and practical competency verification assessments, and a refresher training program should be conducted throughout the year to ensure workers remain familiar with current processes and procedures.