Prosecution Details

Was a director of a body corporate when that body corporate was guilty of an offence under the Occupational Safety and Health Act 1984 that occurred with the consent or connivance of, or was attributable to any neglect of the part of, the Accused.

BACKGROUND

Vannevar Pty Ltd trades as Townsend International Tyres, a tyre wholesale and sales outlet located at 25 Townsend Street, Malaga.  A large number of tyres are stored at the business premises on the floor and in a racking system.

At the time of the offences, there was a system of racking used to store tyres.

The majority of the racking extended to two levels but only a small portion of the racking extended to three levels.  The floor height of the third level sat at approximately 3.71 metres above the ground.

Mr Morrie Bursztyn has at all material times been one of two directors of Vannevar, as well as its manager.  Mr Bursztyn's wife is Vannevar's other director and is not involved in the company's day-to-day operations.

SYSTEM OF WORK

When tyres are delivered, they are stored on the second and third racks.  When tyres are sold, they are taken from the ground level racks and provided to customers.  As the ground level is depleted, tyres are moved from the upper levels to replenish them.

At the time of the offence, Vannevar's process of retrieving tyres involved:

(a)  a worker driving a forklift into the storage area with a pallet on the forklift's tines (or "forks"), although sometimes a pallet was not used;

(b)  a second worker standing on the pallet or the forks;

(c)  the forklift operator lifting the worker up to reach the tyres; and

(d)   the forklift operator would sometimes drive away while the worker was standing on the rack, leaving the second worker with no way to get down. The forklift operator would return later (after 10 to 15 minutes) to retrieve the worker.

Vannevar had acquired a fall arrest harness for workers to use when working at height. Only one worker reported being aware of the availability of the harness and using the harness. 

A similar process to the above existed for storing tyres.

At the time of the offending, this process had been in place for some time and was not a one-off occurrence.

Standing on a pallet or forklift tine, or on the top rack, exposed employees to the hazard of falling from heights of up to 3.71 metres.  Falling from such heights onto the concrete floor below could easily result in serious injury or death.

Approximately five employees undertook the task of retrieving or storing tyres in the manner described above.  No one was injured or fell.

GENERAL KNOWLEDGE ABOUT HAZARD

Commission for Occupational Safety and Health's guidance note entitled "Working Safely on Forklifts" (2008) provides information to industry on how to operate forklift trucks safely. The note specifically prohibits people being lifted on the forks or load and using the forklift to lift a person unless a work cage is appropriately fitted and used.  This prohibition is included in regulation 4.53(2) of the Occupational Health and Safety Regulations 1996 (WA).

Commission for Occupational Safety and Health's Code of Practice entitled "Prevention of Falls at Workplaces" (2004) provides information to industry about the importance of using edge protection (or a "guard rail system") to reduce the risk of a person falling from one level to another.  The note specifically requires the provision of edge protection (or a "fall injury prevention system") where a person is at risk of falling three or more metres.  The requirement regarding edge protection is included in regulation 3.55 of the Occupational Health and Safety Regulations 1996 (WA).

WORKSAFE INSPECTIONS

Following the receipt of a complaint, on 30 January 2017, a WorkSafe inspector attended the site and issued a prohibition notice; prohibiting persons from working from forklift tines to access tyres located on the third tier of racking.

The prohibition notice was passed on to Mr Bursztyn.  Mr Bursztyn did not display the notice, as required.  Instead, he filed the notice away and did not tell employees about the notice. 

On 9 May 2017, following the receipt of a complaint, the WorkSafe inspector again attended the site and conducted interviews with employees, who advised that work from the forklift as described above had not ceased.  The WorkSafe inspector issued a new prohibition notice; prohibiting the practice of accessing the tyres in the manner described above.  Following the receipt of this notice, Mr Burstyn rectified the safety issues raised in the notice.

During WorkSafe's investigation, some workers reported to investigators that they had been in fear of losing their jobs if they did not carry out the work in the manner described above, but accept that this was not said to them by Mr Bursztyn nor did they express these concerns to him.

PRACTICABLE MEASURES

Vannevar then stopped the practice of working from the forklift tines or from a pallet on the tines.  Instead:

(a)  the third level of racking has been removed;

(b)  the tyres are now only stored on racking at the second (1.8 metre) level; and

(c)  a portable access platform is now used to access the second rack.

DIRECTOR'S ROLE

Mr Bursztyn played an active role in directing employees to perform their work.  He had actual knowledge of the hazard from at least January 2017, when WorkSafe attended the site and did not take steps to remedy the problem at that time.  He did rectify the unsafe workplace following the second visit from the WorkSafe inspector.

Despite WorkSafe expressly prohibiting the system of work, Mr Bursztyn continued allowing work to be carried out in the manner described.

Mr Bursztyn participated in two voluntary records of interview and admitted:

(a)  after the prohibition notice was issued on 30 January 2017, he saw workers standing on a pallet lifted by a forklift;

(b)   he should have stopped the practice immediately but did not do so;

(c)    he knew that a fall from that height could cause serious injury or death;

(d)    he recalled receiving the prohibition notice but did not display it and instead filed it away;

(e)   the safe system of work which was later adopted was easy to implement and could have been done after the first prohibition notice was issued; and

(f)    not implementing the practicable measures earlier was his fault and he takes "full responsibility" for it.

CONCLUSION

Vannevar failed to provide and maintain a workplace and system of work such that, so far as was practicable, its employees were not exposed to hazards.

Vannevar's offending was attributable to neglect on the part of Mr Bursztyn, or occurred with his consent or connivance.

Both Vannevar and Mr Bursztyn are first offenders.

The Accused entered a guilty plea on 11 June 2020 and was convicted.  On 22 September 2020 the Magistrate fined the Accused $20,000.