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Prosecution Details

Defendant Gary Alexander Egberts
Section 20(1) & 20A(3)
Offence Date 18 February 2011
Description of Breach(es)

Being an employee, failed to take reasonable care to avoid adversely affecting the safety or health of any other person through any act or omission at work, contrary to sections 20(1) and 20A(3) of the Occupational Safety and Health Act 1984.

Background Details

Massena Pty Ltd (ACN 071 456 203; Massena) is a corporation that carries on a consolidated freight business under the trading name Star Freightlines.

Massena employs approximately 38 employees and operates 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 (Driver 1, Driver 2 and Driver 3). Their duties were to make deliveries and to load and unload freight.

Neither Driver 1, Driver 2 nor Driver 3 were given any formal training on Massena's safety procedures when they commenced employment. Each of them commenced employment with Massena prior to Mr Egberts.

18 February 2011

On 18 February 2011, Mr Egberts, Driver 1 and Driver 2 were at work at the Karratha Depot.

Driver 1 and Driver 2 had just returned to the Karratha Depot after refuelling and had parked their trucks in the usual parking locations.

Mr Egberts emerged from the shed driving the Forklift loaded with stock. Mr Egberts approached Driver 1's truck and loaded on the first pallet.  Driver 1 was standing to the left of the Forklift and Driver 2 was standing at the cab of Driver 1's truck.

Mr Egberts stopped the Forklift and directed Driver 1 to go to the office, situated to the left of Driver 1's truck, and attend to the paperwork for the stock that he was about to deliver.

Mr Egberts looked into his reversing mirrors, fixed on either side of the Forklift, and did not see anyone in his reversing path.

Mr Egberts reversed away from Driver 1's truck and veered to the right on a curve. Mr Egberts did not sound his horn before doing so.

It was not unusual at the Karratha Depot generally for forklift drivers not to sound their horn before reversing, or exiting the shed. Massena did not have a policy requiring the horn to be sounded in such circumstances, or as to the manner of operating forklifts generally.

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.

Mr Egberts travelled approximately 5 metres in the Forklift. The road surface was damp and muddy.

Unknown to Mr Egberts, Driver 1 and Driver 2 were standing in the area towards which Mr Egberts was headed. Driver 1 had his back to his truck.

Driver 2 saw Mr Egberts coming, shouted out to him and attempted to pull Driver 1 aside. Mr Egberts did not hear anyone shout out to him.

The Forklift reversed into the back of Driver 1, knocking him face down to the ground and running over his left leg. When Mr Egberts realised what had happened he immediately 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.

As at 18 February 2011, Massena had no policy requiring exclusion zones or otherwise ensuring the separation of pedestrians and forklifts.

Licensing

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:

  1. a relevant notice of satisfactory assessment issued by a high risk work assessor registered under Part 6 Division 3 of the Regulations; and
  2. a relevant qualification or statement of attainment issued by a registered training organisation and stating that the applicant has received appropriate training and is competent.

National requirements for training and assessment cover the skill and knowledge to operate a forklift, including:

  1. pre-start checks;
  2. site checks;
  3. safe operation, including the establishment of exclusion zones;
  4. driving skills; and
  5. regulatory requirements.

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 Driver 3 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.

On or about 12 March 2011, at Massena's cost, Mr Egberts successfully underwent training and assessment to obtain a Forklift Licence.

Failure to take reasonable care

On 18 February 2011, Mr Egberts failed to take reasonable care to avoid adversely affecting the safety or health of Mr Kristi and Mr McEwan, in that he:

  1. failed to establish an exclusion zone before operating the Forklift;
  2. failed to maintain a proper lookout for pedestrians while reversing the Forklift; and
  3. operated the Forklift without holding the required qualification under the Regulations.

Previous convictions

On 10 October 2011, Mr Egberts was convicted of two charges under section 55(1) of the Act in his capacity as the manager of a corporation guilty of breaches of the provisions of the Regulations relating to the driving of commercial vehicles committed in September 2007 and January 2008.




Outcome Summary

Convicted on guilty plea.

Magistrate fined the Accused $1000 after 20% reduction.

Application for spent conviction order refused.

Conviction Date 08 Jul 2013
Court Magsitrates Court of Western Australia - Perth
Fine $1000.00
Costs $1728.00
Charge Number KH764/13