An employer has been handed the highest fine for a single safety offence in Australian history, in a case which shows judges will impose significant penalties, under the harmonised WHS Act, on those with poor safety records.
ACT Industrial Magistrate Lorraine Walker yesterday fined Kenoss Contractors Pty Ltd (in liquidation) $1.1 million, from a maximum $1.5 million, for breaching s32 of the Territory’s mirror WHS Act in failing to ensure the safety of a tip-truck driver, who was electrocuted when his vehicle touched powerlines at a Kenoss construction site in March 2012. He was dumping a load of road-making material at an unsigned and unsupervised section of the site, where other materials were stored, when the fatal incident occurred.
In June this year, the Industrial Magistrate found Kenoss could have taken a number of simple safety measures to prevent the incident, such as blocking access to the area beneath the powerlines, turning off the power if a delivery to the hazardous area was required, requiring delivery drivers to be accompanied by a spotter, providing appropriate warning signs and placing flags or “tiger tails” on the powerlines to make them more visible.
In sentencing the company yesterday, she said the general risk of overhead powerlines was widely known, and Kenoss should have eliminated it. She said that while it was “possible to imagine” a more serious safety breach, Kenoss’s failings warranted a high-range fine.
This fine sends a strong message to PCBUs about their responsibilities to subcontractors, and about the willingness of magistrates to consider significant penalties under Australia’s new safety laws.
The $1.1 million fine was the highest penalty ever imposed for a single offence under Australian OHS laws.
Kenoss had infringed previously which played a role in the size of the fine. Company Officers should take special note that the preparedness of Magistrates to impose larger fines is more and more evident.
Managing risk is not difficult and Kenoss could have avoided this case through simple risk management processes.
