The Largest Fine Ever Imposed on a NSW Company

Weekly WHS Article 1st August 2023

A NSW District Court judge on the 14 th of July 2023 fined an arborist company $2,250,000. This fine is the largest ever imposed on a NSW company.

The death of the worker was not inevitable or simply misfortune. It happened because risks were ignored, and steps were not taken to prevent harm from happening.

In SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor (2023) NSWDC 256, A1 Arbor Tree Services Pty Ltd was charged for failing to comply with its duty to ensure, so far as reasonably practicable, the health and safety of its workers (Ref 1). On the contrary, the Judges’ decision was that the company was reckless in that task (Ref 2). The company agreed they were guilty and because of their guilty plea their penalty was reduced to $2,250,000.

If you care to read the Judge’s decision you will see the full details of what the company did or did not do and why the judge concluded that the company had a reckless approach and handling of their health and safety duty of care (Ref 3).

The result was that one of their relatively new and not fully trained employees suffered a gruesome and horrific death while feeding branches into a woodchipper machine.

The judge also fined one of the employees, in effect a manager, for failing to take reasonable care that his acts or missions did not adversely affect the health and safety of other persons. The manager pleaded guilty to that charge and his fine of $150,000 was reduced to $101,250.

The manager was responsible for overseeing the company’s operational work health and safety procedures, including the identification, assessment and management of hazards. He was also responsible for providing resources, training and instruction to the company’s employees at every job it attended. It was agreed that he engaged in conduct which exposed workers to a risk of serious injury or death on the day that the worker died (Ref 4).

The judge states on page 17 of the judgement that, “The seriousness of the foreseeable harm to a worker was extreme, and the steps available to avoid the risk were straight forward and readily available to the defendants.”

WHS Risk Management

All workplaces need to have an effective WHS risk management system. WHS risk management is the systematic process of identifying hazards, assessing the risks associated with those hazards, instituting control measures that will minimise or eliminate the risks, and reviewing the control measures periodically to reaffirm they are effective.

The WHS Regulation 2017 states that it is the duty of a Person Conducting a Business or Undertaking (PCBU) to manage risks in the workplace. A PCBU must identify reasonably foreseeable hazards and must:

(a) eliminate risks to health and safety so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable.

References

Ref 1. AustLii, SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor (2023) NSWDC 256 (14 July 2023)

Ref 2. See page 4,1. of the Judge’s decision.

Ref 3. See page 9, 72.-81., and page 10, 82.-94, and page 11, 95.–104. of the Judge’s decision.

Ref 4. See page 11 of the Judge’s decision.

1st August 2023

Copyright © 2023 Courtenell. All rights reserved.