Judge comes down hard on “reckless indifference”

Weekly WHS Article 25th July 2024

The following court case is an example of a business owner running a business without sufficient knowledge of their WHS responsibilities to the business, themselves, and their workers. 

WHS law applies to all business owners. Company directors are ultimately responsible for WHS incidents and may be held personally liable. In the following case we see that the Judge had no sympathy for the attempt of the accused to minimize the consequences of their breach.

The case

A Queensland materials manufacturing company was fined $100,000, and its director fined $30,000, in relation to a worker suffering injury from entanglement in the rollers of a glue-spreading machine (WorkSafe Queensland v Ashden Trading Pty Ltd.)

The company, Ashden Trading Pty Ltd, manufactures pressed wooden panels. As part of the production process, pressed wooden panels are passed through a glue-spreading machine, which uses two heavy rollers to apply glue to either side of the panel. The panels are then covered in laminate.

On 22 November 2021, one of the company’s workers was tasked with cleaning the glue-spreading machine to remove excess glue that had accumulated on the surface of the rollers. The company director instructed a worker to clean the glue rollers with a toothbrush while the machine was operational. While doing so, the worker’s arm became entangled in the roller. The worker suffered a fractured elbow and compartment syndrome in his forearm.

The company (PCBU) pleaded guilty to a charge under Section 32 of the Workplace Health and Safety Act 2011 (Qld) on account of its failure to ensure the health and safety of its workers, resulting in its workers being “exposed to a risk of death or serious injury or illness.” 

Findings

• The Magistrate found that Ashden Trading Pty Ltd disregarded the clear safety instructions provided by the glue-spreading machine’s manufacturer, which warned that the machine should never be cleaned while the rollers are rotating. 
  

• Furthermore, the Magistrate found that Ashden Trading Pty Ltd failed to provide a safe work plan or training to its workers on how to clean the machine safely.
  

During sentencing, the Magistrate showed regard to the company’s early guilty plea, clean safety record and good business character as mitigating factors. 

However, given the gravity of the offending and the level of reckless indifference on the part of the company director, the Magistrate considered it necessary to ensure the fine was sufficiently large to punish the company, deter future offending, and account for the impact on the victim. Ashden Trading Pty Ltd was ordered to pay a $100,000 fine, plus legal costs.

The company director submitted that given the company was a closely held family company, the fine imposed on the director should be no more than “$1,000” otherwise it would amount to “punishing the director twice for essentially the same criminal conduct.” 

It may be that this request did not go down well with the Judge.  

Business owner duties

The Magistrate rejected the submission and fined the director $30,000 for his failure to exercise his legal duties as company director under Section 27 of the WHS Act. 

Under Section 27, anyone who is deemed an “officer” of a business (as defined in Section 9A(d) of the Corporations Act 2001) must ensure that their business is in compliance with its primary duty of care to provide safe systems of work; to provide information, training, instruction and supervision to staff; and to ensure there is a WHS management system that protects staff from health and safety concerns. Business owners, company directors, and CEOs are “officers.”  

That the director asked for a lesser personal fine, using “family business” as a reason, showed that the director was lacking essential knowledge of their legal obligations under Section 27 of the Act.

A PCBU is a business entity. In simplicity it is “a name on paper.” The company director is a human being who, as an officer of the PCBU, must ensure that all expectations of the PCBU under WHS Law are translated into real world actions, measures, systems, and activities that prove these expectations are being met.

It is not the “business” that is at fault. It’s the people running the business that are at fault. Just about every court case on WHS matters results in the Directors of the company being fined and issued training orders and other directives.

As a business owner, learning about WHS Law and your duties under these laws, is a simple action that does not require a lot of time or money. You can do a short WHS law-based course here: Courtenell WHS Law for Directors and Officers.    

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.

25th July 2024

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