Case

WorkSafe Victoria v New Sector Engineering Pty Ltd (2020)

New Sector Engineering Pty Ltd (NSE) is involved in repairing and maintaining steel machines for the food and industrial sector.

On 1 December 2017, NSE directed an employee and a labour hire worker to use the company ute to obtain two gas cylinders of acetylene and oxygen from an offsite gas provider. The employee and labour hire worker rested both gas cylinders on their side in the full enclosed toolbox of the ute when transporting the gas cylinders to the worksite.

The gas bottles were dislodged and exploded shortly after the employee and labour hire worker loaded them into the ute, seriously injuring the employee and causing damage to cars, houses and overhead powerlines in the surrounding area.

Judgment

The Melbourne County Court found that NSE had breached work health and safety legislation on two counts:

• failing to provide a work environment that was safe and without risks to health and safety; and
• failing to ensure persons other than employees were not exposed to risks to their health and safety.

The Court found that NSE failed to provide a safe work environment by failing to create a safe system of work for employees transporting gas canisters to the worksite. To discharge this duty, the Court found the company was required to ensure the gas cylinders were properly secured and able to be transported in the upright position in an adequately ventilated space.

In addition to this, the Court determined that NSE did not provide its employees with the necessary information, instruction and training to enable the relevant persons to perform their work safely. The Court found these failures created risks to the safety of workers and others, ultimately resulting in the employee sustaining multiple traumatic injuries.

Following NSE’s guilty plea, the Court sentenced the company to a fine of $175,000 for failing to provide:

• safe systems of work without risks to health; and
• the necessary information, instruction, training or supervision to enable employees to perform their work safely and without risks to health.

The Court also fined NSE $125,000 for failing to ensure that persons other than their employees were not exposed to health and safety risks arising from the company’s conduct.

Lessons

Employers must ensure the systems of work they have in place respond, as far as reasonably practicable, to the particular risks associated with the varied work of their employees.

As we saw in this case, the fact that the task of obtaining gas bottles was not the primary function of the company did not displace its work health and safety obligations. This was an undertaking that fell within the company’s duty of care and as a result, it needed to make sure safe work practices were in place to minimise the risks associated with the work.

Employers need to make sure their employees are provided with suitable information and training if they will be performing work away from the primary worksite without supervision. By providing employees with training and information, employers can create a culture of safety and caution that will help employees avoid risky activity in the various locations of the workplace. Finally, this case is a good reminder that an employer’s duty under work health safety legislation is not limited to their employees. Employers need to ensure their work practices also ensure the safety of non-employees, such as labour hire workers, who may be exposed to risks arising from the conduct of the employer.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.