Prosecution Details

Charges 1-6 Being a person to whom improvement notice was issued by an inspector duly appointed under the Occupational Safety and Health Act 1984, failed to comply with the improvement notice within the time specified therein; contrary to sections 48(4) and 54b of the Occupational Safety and Health Act 1984.

Charges 7-8 Contravened a requirement of an inspector made under section 43(1)(i) of the Occupational Safety and Health Act 1984 in that it failed to produce documents when required by an inspector appointed under the Act; contrary to section 47(1)(C) of the Act.

Charges 9-16 Being an employer to whom improvement notice was issued by an inspector duly appointed under the Occupational Safety and Health Act 1984, failed to cause the notice, or a copy of it, to be displayed in a prominent place at or near the workplace affected by the notice; contrary to Sections 48(3) and 54 of the Occupational Safety and Health Act 1984.

The accused is a corporation that operates Nanga Bay Resort located on Nanga Road in Shark Bay, located approximately 53 km from Denham. Nanga Bay Resort offers accommodation and caravan sites and has a restaurant, kiosk, swimming pool and spa facilities.  The accused employs several persons to work at the Nanga Bay Resort carrying out tasks such as reception, cooking, cleaning, housekeeping, laundry services, maintenance, gardening and landscaping.

Charges 1 - 6 of 16. On 10 October 2007, an inspector appointed for the purposes of the Occupational Safety and Health Act 1984 (Act) under section 42 of the Act, visited Nanga Bay Resort in order to carry out an inspection of the workplace.  On 11 October 2007, the Inspector returned to the workplace and, having formed the opinion, on reasonable grounds, that the accused was contravening a number of provisions of the Act and Occupational Safety and Regulations 1996 (Regulations), he issued to the accused a number of improvement notices.  Amongst the improvement notices issued by the Inspector were the following;

Improvement Notice 2300086, which related to the Inspector's belief that the accused was contravening section 19(1) of the Act by failing to make protective gloves available to employees to use when decanting LPG has to fill gas cylinders.  This exposed the employees to the hazard of suffering cold burns to their skin from escaping LPG gas coming into contact with their skin.  This notice was required to be complied with by 14 December 2007, by ensuring that appropriate protective gloves were available for employees undertaking this task.

Improvement Notice 2300088, which related to the Inspector's belief that the accused was contravening regulation 3.60(3)(b) of the Regulations because there was no residual current device provided in the workshop located within the Resort.  The lack of residual current devices exposed the employees to the risk of electrocution when using portable or hand held electrical equipment within the workshop.  This notice was required to be complied with by 28 February 2008 by installing non-portable RCDs at the electrical switchboard or to all fixed power outlets within the workshop.

Improvement Notice 23300091, which related to the Inspector's belief that the accused was contravening regulation 3.6(a) of the Regulations because there was a change in level of approximately 5 cm near the urinal in the male toilets that was not readily apparent and as such created a trip hazard to employees and others moving in the area.  This notice was required to be complied with by 28 February 2008, by providing high visibility, non-slip strips at the change in floor level in order to render the change in level readily apparent.

Improvement Notice 23300092, which related to the Inspector's belief that the accused was contravening regulation 5.13(1) of the Regulations because although there were hazardous substances at the workplace, there was no register of hazardous substances and no Material Safety Data Sheets available at the workplace in relation to those hazardous substances.  This notice was required to be complied with by 28 February 2008 by ensuring that a register of hazardous substances is available and accessible at the workplace and ensuring that a MSDS is available for each hazardous substance used at the workplace.

Improvement Notice 23300093,which related to the Inspector's  belief that the accused was contravening regulation 5.15 of the Regulations because it had not conducted and recorded  an assessment on hazardous substances, such as potassium hydroxide solution, liquid bleach, phosphoric acid 42%, used at the workplace.  This notice was required to be complied with by 28 February 2008 by conducting a risk assessment in accordance with regulation 5.15.

Improvement Notice 23300094, which related to the Inspector's belief that the accused was contravening regulation 5.21 of the Regulations by failing to keep records of employee training in relation to hazardous substances as required by that regulation.  This notice was required to be complied with by 28 February 2008 by the development and implementation of a system of relevant training for the employees in relation to the hazardous substances used at the workplace and keeping a record of that training.

Improvement Notice 23300095, which related to the Inspector's belief that the accused was contravening section 19(1) of the Act by allowing employees to use a portable ladder to access the main diesel tank which had no handrails and rungs that were too narrow, thereby exposing employees to the risk of falling from a height and suffering injury.  This notice was required to be complied with by 28 February 2008 by the provision of a suitable fixed ladder.

These notices were all handed to an employee of the accused at the workplace by the Inspector on 11 October 2007.  The Inspector spoke to one of the directors of the accused, on 23 January 2008 in relation to the notices and as a result of that conversation the Inspector faxed and posted copies of all of the notices to Nanga Bay Resort.   On 2 April 2008 WorkSafe received, via post, the lower portion of these notices, which had been signed by one of the directors of the Accused and which stated that the notices had been complied with. 

The accused did not seek review of these improvement notices under section 51 of the Act.  Subsequent to receipt of the compliance slips for the notices, the Inspector discovered that the accused had not complied with improvement notices 23300088, 23300091, 23300092, 23300093, 23300094 and 23300095 by the required time. 

Charge 7 of 16.  On or about 11 August 2008 the Inspector determined that, for the purposes of his investigation into several suspected breaches of the Act by the accused, he required the accused to provide him with some documents.  By letter dated 12 August 2008 the Inspector  advised the accused that pursuant to section 43(1)(i) of the Act he required to accused to produce to him on 14 August 2008 at Nanga Bay resort a number of specified documents.  Copies of the relevant provisions of the Act were provided with the letter and the Inspector provided his mobile number in case the accused required any further information. The Inspector handed this letter to one of the directors of the accused at the Nanga Bay Resort on 12 August 2008.  The accused did not provide any documents to the accused on 14 August 2008. The director stated to the Inspector on that date that the documents were all with another director of the company who had an office at the Red Castle Hotel in Rivervale.  On 9 September 2008 the Inspector observed at the Nanga Bay resort some documents that came within the list of documents he had required to be produced to him. 

Charge 8 of 16.  By letter dated 6 October 2008 the Inspector advised the accused that, pursuant to section 43(1)(i) of the Act he required the accused to produce to him, on 20 October 2008, at the office at the Red Castle Hotel in Rivervale, a number of specified documents.  The Inspector again provided copies of the relevant provisions of the legislation and included his mobile phone number with a statement that the accused could contact him to make alternative arrangements if necessary.  No representative of the accused contacted the Inspector in relation to that letter and no documents were produced to the Inspector when he arrived at the place and time nominated in his letter.

Charges 9-15 of 16.  On 12 August 2008, when he was at the Nanga Bay Resort, the inspector discovered that none of the improvement notices issued on 11 October 2007 and described above had been displayed in the workplace at all as required by the Act. 

Charge 16 of 16.  On this date the Inspector also formed the opinion, based on reasonable grounds that the accused was contravening a number of provisions of the Act and Regulations.  On 13 August 2008 the Inspector returned to Nanga Bay Resort and issued a number of improvement notices based on the opinion he had formed the previous day.  One of those was improvement notice 23300236, which related to the Inspector's belief that the accused was contravening regulation 5.32 of the Regulations because there was asbestos containing material yet there had been no assessment of this and no register of asbestos containing material nor any warning signs displayed in relation to that asbestos containing material.  This notice was required to be complied with by 31 December 2008 by ensuring the identification and risk assessment of all asbestos containing material at the workplace in accordance with the Code of Practice for the Management and Control of Asbestos in the Workplace.

On 10 September 2008, when he again returned to Nanga Bay Resort, the Inspector discovered that improvement notice 23300236 had never been displayed at the workplace as required by the Act.

The Accused entered a guilty plea and was convicted on all 16 charges.

Please note that the charges have a global fine. While a penalty is imposed on each charge it is for the global fine and not a separate amount for each charge.