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Prosecution Details

Offender Flexi Staff Pty Ltd (ACN 009 440 288)


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Charge Charge Number Offence Date Date Convicted Regulation Section Penalty Provision Penalty Imposed Date Sentenced
1 PE5477/11 5 March 2008 6th May 2011 3A(3)(b)(i) $40,000.00 6th May 2011
Description of Breach(es)

Where under a labour hire arrangement work was carried out for remuneration by a worker, for a client of the accused who was a labour hire agent, in the course of the clients trade or business, the accused failed to, so far as practicable, to provide and maintain a working environment in which the worker was not exposed to hazards, and by that failure caused serious harm; contrary to sections 23F, 19(1) and 19A(2) of the Occupational Safety and Health Act 1984

Background Details

A British citizen on a working holiday in Australia, was employed by a labour hire company, Flexi-Staff Pty Ltd and was sent to work at the Bed Plus warehouse in Kewdale.

The British worker and his fellow traveller, commenced with Flexi Staff shortly after their arrival in Australia in late January 2008.  The first job they were sent to was at the Beds Plus warehouse and commenced in early February 2008.  The job was intended to only last a few days but carried into March 2008.

The workers were employed as casual labourers to unload sea containers from outside the warehouse onto pallets and to conduct general warehouse duties.  It was not part of their job description as a labourer to drive forklifts.  Neither had any experience or qualifications in driving a forklift nor did they hold a high risk work licence in accordance with Regulation 6.2 of the Occupational Safety and Health Regulations 1996.  However, when the pair had been at the warehouse approximately two to three weeks, as part of their duties as required by Beds Plus, and after only a short lesson from a supervisor, they commenced driving the forklift.  There were also other employees at the Beds Plus warehouse operating the forklift when they had no qualifications to do so.

There were weekly visits to the Beds Plus warehouse by a Flexi Staff manager primarily in order to collect time sheets, however there was no, or limited, efforts made in relation to:

  • 1. re-enforcing with Beds Plus and the employees the need for compliance with job descriptions particularly in relation to duties outside the scope of the employees qualifications and experience;
  • 2. communicating with Beds Plus and the employees concerning any changes in tasks required of employees; and
  • 3. undertaking a hazard and risk assessment process for either a new employee or an employee with new duties or in particular an employee being exposed to the un-licensed operation of forklifts by themselves or another employee.

On 5 March 2008, the British worker had unloaded a container and brought the pallet inside the warehouse using the HYSTER N30FR forklift.  After the worker had placed the pallet on the top level of the shelving he had the forks and mast full extended.  At the time there was no supervisor, or suitably qualified forklift driver, supervising the worker.  The worker did not lower the forks and mast and commenced driving toward the roller door which was raised to 5 or 6 metres.  As the worker went to go through the roller door, the mast struck the roller door.  The forklift then began to tip and the worker attempted to jump from the falling forklift.  As the forklift fell to the ground the worker's right leg became trapped between the overhead guard or rollover protection structure (referred to as ROPS) and the concrete floor.   Other workers attempted to manually lift the forklift but the worker's right leg remained trapped until a second forklift could be used to lift the forklift from the worker's right leg. 

The worker was taken by ambulance to Royal Perth Hospital.  The worker's right foot was severely damaged.  He had severed one artery and damaged the other two arteries thereby limiting the blood supply to his right foot.  He also had multiple fractures.  The worker had surgery which involved the amputation of his right leg below the knee.

Once loaded, forklifts must travel with the load at a height only high enough to clear ground obstacles or a height of less than a few hundred millimetres.  When a forklift is travelling without a load, the forks must be in the same lowered position so that the forklift is in the best position for balance, to provide good visibility for the driver and to reduce the chance of the forks striking an object.  Standard training for forklifts includes to never jump off in the event of a rollover.  Forklifts are required to be fitted with an overhead guard or ROPS in order to offer protection to the driver from falling objects and in the event of a rollover.  Therefore, what was designed to protect the worker in the event of a rollover, actually was what pinned his leg to the ground when he attempted to jump from the tipping forklift.

Through the issue of infringement notices from 2005 to 2007, Flexi Staff have been made aware by WorkSafe of issues concerning the extent of their communication with staff at client workplaces, of not being aware of changes in duties and failing to visit the workplace and identify hazards of concern to their employees.

Outcome Summary

The Accused pleaded guilty.

Court Magistrates Court of Western Australia - Perth
Costs $1604.70

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