First successful prosecution of a Commonwealth PCBU after defended hearing

The Australian Antarctic Division (AAD) is a Commonwealth agency within the Department of Environment and Energy (Department). It is tasked with the advancement of Australia’s strategic, scientific, environmental and economic interests in Antarctica.

The Commonwealth, through the then Department of Sustainability, Environment, Water, Population and Communities, engaged HeliRes to provide logistic support, including helicopters and pilots to the AAD in the Australian Antarctic Territory (AAT). HeliRes pilots were deployed to work from and around Davis Station.

On 8 and 28 December 2015, pilots were directed to transport drums of aviation fuel to sites on the West Ice Shelf. In accordance with federal civil aviation orders, the pilots flew without passengers, and with drums slung on long lines below their helicopters. On each occasion after landing at the fuel sites, the pilots walked between the fuel drums to retrieve transport lines and hooks.

On 11 January 2016, helicopter pilot David Wood was performing a routine aviation fuel drop with a colleague on the Western Ice Shelf in the AAT. While walking across the ice at a fuel cache, Mr Wood fell into a hidden crevasse located directly beneath the helicopter tail. Mr Wood was not wearing transport survival gear issued by AAD at the time. Despite prolonged resuscitation attempts, he later tragically died from hypothermia.

The Commonwealth and HeliRes were both charged with breaches of the Work Health and Safety Act 2011 (WHS Act) in relation to the duties owed to the pilots who undertook those flights.

Commonwealth business or undertaking

The Commonwealth, acting through its responsible agency, the Department, was conducting a business or undertaking in Antarctica at various sites including the fuel cache site where the fatal incident in 2016 occurred. The Court observed that the fuel sites were used to store the Commonwealth’s fuel for the Commonwealth’s purposes.

Application of the Commonwealth WHS Act to HeliRes

The Court found that for the purposes of the WHS Act, the HeliRes pilots were workers of the Commonwealth (as employees of a Commonwealth contractor) and carried out work at a Commonwealth place (the incident site), and so the Commonwealth WHS Act applied to that place and imposed a WHS duty on HeliRes.

Charges and findings

Both the Commonwealth and HeliRes were charged with three counts of failing to comply with health and safety duties to workers pursuant to s 19(1) of the WHS Act, in that they failed to ensure, so far as reasonably practicable, the health and safety of workers while they were utilising or establishing fuel cache sites on the West Ice Shelf operating out of Davis Station on 8 and 28 December 2015 and 11 January 2016.

The particulars of the charges were very detailed and substantially similar as against each Defendant.

As against the Commonwealth, the prosecution relevantly alleged it failed in its duty by permitting workers to land helicopters and walk on ice surfaces without first assessing the sites, in circumstances where this was unsafe due to the possible presence of hidden crevasses.

A cascading series of reasonably practicable measures the Commonwealth could have allegedly taken included:

• obtaining and analysing publicly available satellite imagery
• engaging in an air task risk assessment process
• undertaking low-light helicopter reconnaissance
• undertaking helicopter-crevasse probing
• marking boundaries in the areas deemed safe to land and walk, and
• repeating all steps if more than two weeks had passed or a significant weather event occurred.

The Court found that each step was reasonably practicable for the Commonwealth to undertake, noting that although HeliRes and its pilots were subject matter experts (SME) with significant aviation experience (including Antarctic experience) the AAD:

• hosted the operations
• was the SME in respect of operations in Antarctica
• had access to (and used) satellite imagery which might reveal features of crevassing
• was best placed to decide how to safely conduct the projects, and
• could adjust resources, work rosters and work sequencing to service the project.

A separate charge regarding the failure to require pilots to wear personal protective equipment (PPE) at all times was unsuccessful. The Court considered this was not reasonably practicable because bulky PPE would obstruct vision during sling load operations and was too warm to wear inside the helicopters.

As against HeliRes, the charges were not sustained.

Observations

HeliRes is not a Commonwealth entity. It is also not a non-Commonwealth licensee for the purposes of the WHS Act. Traditionally, it has been accepted that such companies are not subject to prosecution under the Commonwealth WHS Act and instead, are subject to State and Territory WHS legislation. However, in a relatively short part of the decision, the Court appears to confirm the application of the WHS Act to HeliRes. This could have significant ramifications for all businesses and undertakings conducting work on Commonwealth or non-Commonwealth licensee workplaces.

The decision also demonstrates the high standard of care expected under the WHS Act to provide and maintain safe systems of work, particularly for work undertaken in extreme and variable working environments.

We will keep you informed as further updates come to light.