|Defendant||Massena Pty Ltd (ACN 071 456 203) t/a Star Freightlines|
|Section||19(1) & 19A(3)|
|Offence Date||18 February 2011|
|Description of Breach(es)||
Being an employer, failed so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards, contrary to sections 19(1) and 19A(3) of the Occupational Safety and Health Act 1984.
Massena Pty Ltd (ACN 071 456 203; Massena) is a corporation that carries on a consolidated freight business under the trading name Star Freightlines.
As at 18 February 2011, Massena employed approximately 38 employees and operated from a central yard in Canning Vale and a transport yard at Lot 2496, Pemberton Way, Karratha (Karratha Depot).
Freight is transported from Canning Vale to the Karratha Depot using prime movers. At the Karratha Depot, small deliveries are removed from the loads, sorted in the onsite shed, reloaded onto smaller vehicles and delivered to clients in Karratha and surrounding areas. Larger deliveries are left on the prime movers and delivered directly to clients.
Massena owns a Komatsu forklift truck (registration 1DEZ740) (Forklift) which it operates to load, unload and transport freight at the Karratha Depot. The unladen weight of the Forklift is 3,590 kg.
Gary Egberts was appointed as Depot Manager of the Karratha Depot in January 2011. As Depot Manager, Mr Egberts was responsible for supervising and directing all Massena's employees at the Karratha Depot in ensuring that freight received there was delivered to Massena's clients.
However, Mr Egberts received little handover from his predecessor, or training in Massena's policies and procedures, when he commenced as Depot Manager.
Massena also employed three other workers at the Karratha Depot as delivery drivers . Their duties were to make deliveries and to load and unload freight.
18 February 2011
On 18 February 2011, Mr Egberts, and two of the delivery drivers were at work at the Karratha Depot.
The two delivery drivers (Driver 1 & Driver 2) had just returned to the Karratha Depot after refuelling and had parked their trucks in the usual parking locations.
As Driver 1 began walking across towards to Driver 2's truck to speak with him, Mr Egberts emerged from the shed on the Forklift.
The two delivery drivers met approximately 5 metres away from Driver 1's trucks. Driver 1 had his back to his truck.
Mr Egberts drove the Forklift to Driver 1's truck and then reversed away from it. He did not sound his horn, look over either of his shoulders or otherwise confirm that there were no pedestrians in the area before doing so.
Massena did not have a policy requiring the horn to be sounded in such circumstances, or as to the manner of operating forklifts generally.
Mr Egberts reversed the Forklift at high speed towards Driver 1 and Driver 2. Again, Massena did not have a policy as to the speed at which forklifts were to be driven.
The Forklift's reversing alarm did not sound. In fact, the alarm had not been working properly for several weeks prior to 18 February 2011. Although Massena had commissioned certain specific maintenance on the Forklift on 4 February 2011, it had not had the reversing alarm repaired on that occasion.
As at 18 February 2011, Massena did not have a policy requiring regular pre-start checks (including ensuring that the reversing alarm was operational) to be conducted by forklift operators at the Karratha Depot.
Driver 2 saw Mr Egberts coming, shouted out to him and attempted to pull Driver 1 aside. However, due to the speed and distance Driver 2 was unable to do so.
The Forklift reversed into the back of Driver 1, knocking him face down to the ground. Mr Egberts stopped the Forklift momentarily and then continued reversing across Driver 1's left leg.
Driver 2 again shouted out to Mr Egberts, who realised what had happened and drove the Forklift forward off Driver 1.
As a result of the incident, Driver 1 suffered a dislocated left patella and significant abrasions and bruising.
Driver 1 was wearing black clothing when he was struck by the Forklift. Massena did not have a formal policy requiring high-vis clothing to be worn at the Karratha Depot and did not consistently supply its employees there with high-vis clothing.
High-vis clothing is readily available from suppliers in Karratha.
As at 18 February 2011, Massena had no policy requiring exclusion zones or otherwise ensuring the separation of pedestrians and forklifts.
Since 1 October 2007, pursuant to regulation 6.2(1) of the Regulations, it has (subject to the operation of transitional provisions in relation to the previous licensing framework) been an offence for a person to do high risk work of a particular class unless the person holds a high risk work licence (HRWL) for that class of work.
Pursuant to regulation 6.1(1) of the Regulations, when read with clause 9 of Schedule 6.3, the use of a forklift truck (such as the Forklift) is a class of high risk work.
Pursuant to regulation 6.6(2) of the Regulations, an HRWL for the use of a forklift truck (Forklift Licence) may only be granted to an applicant who the WorkSafe Commissioner is satisfied is competent to do such work.
In determining whether an applicant is competent, regulation 6.6(3) of the Regulations requires the Commissioner to consider whether the applicant has recently been issued:
National requirements for training and assessment cover the skill and knowledge to operate a forklift, including:
As at 18 February 2011, Driver 2 held a valid Forklift Licence.
Pursuant to regulation 7.12 of the Regulations, a person did not require a Forklift Licence to use a forklift truck during the statutory transition period for any applicable certificate of competency issued under the previous licensing regime (Forklift Certificate) and held by that person.
As at 18 February 2011, Driver 1 held a valid Forklift Certificate.
As at 18 February 2011, however, Massena had no formal policy ensuring that forklift operators were formally qualified.
Although the other delivery driver had completed a forklift course in Queensland in October 2010, he had not obtained a valid Forklift Licence or Certificate as at 18 February 2011. However, he had been operating a forklift at the Karratha Depot.
Mr Egberts had also been regularly operating the Forklift since he commenced at the Karratha Depot in January 2011.
He had advised Massena that he was qualified to operate the Forklift. However, Massena had never required Mr Egberts to produce a copy of a valid Forklift Licence or Certificate, or otherwise confirmed that Mr Egberts was in fact qualified or competent to operate the Forklift.
In fact, Mr Egberts had never held a Forklift Licence or Certificate.
Publications available prior to 18 February 2011
As at 18 February 2011, the Commission for Occupational Safety and Health had published and made freely available in print and online Guidance Notes respectively entitled Safe movement of vehicles at workplace (2006) and Working safely with forklifts (2008).
These documents provide detailed guidance on:
Measures taken subsequent to 18 February 2011
On 19 February 2011, the day after Driver 1's accident, Massena arranged for the reversing alarm of the Forklift to be repaired, at a cost of $257.76. These repairs took approximately 1 hour.
On or about 12 March 2011, Massena paid for Mr Egberts to undergo training and assessment to obtain a Forklift Licence, which he did. This cost Massena a few hundred dollars.
Convicted on guilty plea on 27 May 2013.
Magistrate sentenced the Accused on 10 June 2013 with fine of $20,000 after reductions.
|Conviction Date||27 May 2013|
|Court||Magistrates Court of Western Australia - Perth|