Man’s hand crushed in machine
Weekly WHS Article 18th July 2024
On 27 May 2021, a worker of a metal recycling company in South Western Sydney suffered serious hand injuries while attempting to remove cable that was jammed in the rear of a cable stripping machine. The worker’s hand was dragged into the moving parts of the machine, and he was seriously injured.
SafeWork NSW investigated. The alleged breach was:
Shine Motor Corporation Pty Ltd contravened sections 19(1) and 32 of the Work Health and Safety Act 2011.
Section 19 of the WHS Act describes the primary responsibility that applies to all businesses in New South Wales to provide safe systems of work in the workplace and the WHS management system to properly manage the health and safety of its employees and anyone else who comes to site.
Section 32 of the WHS Act lists and describes the three categories of WHS offences.
Shine Motor Corporation Pty Ltd is the “Person Conducting a Business or Undertaking” (PCBU.) A PCBU is a commercial entity, not a human being. The Directors of the PCBU are the people whose responsibilities include ensuring that the company has a robust and successful WHS management system.
SafeWork NSW did not adjudicate the incident to be a Category 1 offence (reckless conduct) but did adjudicate it to be a Category 2 offence (failure to carry out WHS duties.) When an alleged contravention of the Work Health and Safety Act 2011 has occurred, the Regulator may accept a Work Health and Safety (WHS) undertaking * instead of initiating a prosecution. Such undertakings are enforceable.
In June 2024 SafeWork NSW issued Shine Motor Corporation Pty Ltd an enforceable undertaking, to include:
WHS leadership activities including the appointment of a full time WHS Officer, WHS due diligence training for directors, and supervisor training
WHS capability building within the business including the development of a two-year WHS training plan to increase WHS skills and knowledge in the business
A review, update, and translation of the WHS management system
Development, production, and promotion of a hand safety animation.
This undertaking has a total required expenditure of $250,500 to be spent on the actions required to complete the undertaking.
The Regulator’s decision to issue an undertaking instead of turning the matter over to the Courts was influenced by:
The alleged contravention did not appear to be a Category 1 offence. If it had been a Category 1 offence, an enforceable undertaking is not acceptable, and the matter must be put to the courts. If this matter had gone to court, the Directors of the company would have likely been heavily fined and the company itself most definitely would have been fined. All WHS court cases centre around the WHS duties of the business owner which are clear and defined in WHS Law.
The nature of the alleged contravention and the actions taken by Shine Motor Corporation Pty Ltd in response to the incident were assessed as being appropriate for consideration of an undertaking.
The strategies proposed in the undertaking have been assessed as likely to deliver long term sustainable safety improvements in the workplace, industry and community.
The undertaking addresses the requirements contained within the “Enforceable Undertakings – Guidelines for Proposing a WHS Undertaking” (See link in footnote.)
SafeWork NSW’s follow-up steps will include seeking evidence and proof from the directors of the company of compliance with the directives of the undertaking.
As with any undertaking, actions taken by the directors of the company will be assessed on the basis of “as far as is reasonably practicable.” This includes how the directors of Shine Motor Corporation Pty Ltd will spend the money, and the quality of the 2-year training plan and the training delivered; and the new control measures for the identified risks and hazards.
Enforceable undertakings help to improve not only health and safety in the workplace but the Safety Culture of the business too. The state of a company’s Safety Culture is a mirror of the commitment of its directors and leaders to workplace health and safety.
If you are interested in learning more about WHS compliance, Safety Culture, and enforceable undertakings, feel free to contact one of our WHS advisors by phone or email.
* A WHS undertaking is a legal agreement that obliges an organisation to carry out specific activities to improve worker health and safety as well as delivering benefits to the broader community. For more information download the Enforceable undertaking guidelines (PDF, 214.93 KB)
18th July 2024
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