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January 2020

Employer enters into enforceable undertaking after breaching legislation

WorkSafe v Nature’s Gift Australia Pty Ltd (2015)

Facts

On 16 November 2012, a Nature’s Gift Australia Pty Ltd worker injured her arm when she bypassed the ‘light curtain’, a presence-sensing safeguarding system, to reach a tray unloader in an attempt to clear a blockage. The worker was able to reach through to the tray unloader, as the ‘dead man’s’ switch (i.e. a switch for turning off the power) on the light curtain failed to disengage the tray unloader.

WorkSafe Victoria alleged that the employer breached section 16(1) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) for failing to:

  • provide a safe workplace;
  • risk assess the machine;
  • properly train workers; and
  • properly supervise workers.

Judgment

The employer acknowledged that it had failed to provide and maintain a safe system of work that was, so far as reasonably practicable, safe and without risks to the health and safety of its workers.

The employer entered into a $100,000 enforceable undertaking (of which $58,000 was donated to the Institute for Safety, Compensation and Recovery Research), committing to:

  • fixing its workplace safety issues;
  • spending the money on maintaining a safe and healthy workplace by engaging an independent consultant to review its compliance with the OHS Act within 90 days of the undertaking; and
  • developing an action plan to ensure it remains compliant under section 16(1) of the OHS Act.

The employer also took steps immediately following the incident to improve the safety of workers who use the machine, including rewiring the dead man’s switch so that it no longer allowed operators to bypass the light curtain and access the tray unloader while the machine was operating.

Lessons

Rather than being ordered to pay fines following a prosecution, employers who breach health and safety legislation may be given the opportunity to enter into an enforceable undertaking to fix the aspects of their workplace that are in breach of the legislation.

An enforceable undertaking must provide an effective compliance outcome and, in most cases, the employer must commit to spending a significant amount of money on improving the safety of their workplace.

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