Prosecution Details

Charge 1 - Being an employer did not as far as is practicable provide and maintain a working environment in which the employees of the employer are not exposed to hazards and by that contravention caused serious harm to an employee.

Charge 2 - Failure to notify the Commissioner forthwith of an incident involving a prescribed injury.

Workplace and Employment

The offender, PT Supplies Group Pty Ltd, is an Australian Company with company registration number 609 692 971 and is based in Western Australia. The company was set up on 7 December 2015.

The offender’s main function was to facilitate and oversee development of the land at the corner of Coffey Road and Beenyup Road, Banjup WA (the Beenyup Road Property). The other component to the offender’s business involved in importing steel from China for sale and use in the land development.

At the time of the incident on 27 February 2018, there were three distinct areas of the Beenyup Road property.  On block 1 (6 Coffey Road), there was a residential Chinese-style complex at the northern end of the property on the corner of Beenyup Road and Coffey Road. On block 2 (341 Beenyup Road), the middle block, there was a Chinese-style Temple and Confucius garden that was in the process of being constructed and landscaped the time of the incident. On block 3 (351 Beenyup Road), there was a maintenance area with sheds used to store equipment and machinery used for the construction and landscaping works that were being undertaken at the property.

On 27 February 2018, construction of the residence (at block 1) had been completed and people (employees of the offender) were living in that building.

The offender had a small number of direct employees, as well as engaging multiple contractors. These employees and contractors would conduct work at the Beenyup Road Property and at various other locations as required. 

The offender was also leasing a warehouse at Naval Base, Kwinana at the time of the incident. This warehouse was primarily used to store the steel beams that had been imported from China and were being used in the construction project at the Beenyup Road property.

Work Practices at the Workplace

When the offender’s Director was in Perth, he was in charge of work being conducted by the offender. He directed the on-site works at the Beenyup Road Property, either personally, or through a worker who was employed by the director in a supervisory capacity. In the director’s absence, for example when he was overseas, the worker/supervisor (supervisor) would be in charge of supervising employees at PT Supplies and overseeing the construction and development works at the property.

If the supervisor was not on-site he would direct employees via the WeChat messaging app.

The daughter of the director assisted her father with the business and was involved in organising the company’s accounts, selling the imported steel, and would also direct workers on site in various duties.

On 27 February 2018, the victim was employed by the offender as a general labourer. He was 19 years old at the time, he could only speak very limited English, and could not read or write in English. He had been working with the offender since October 2017, after arriving in Australia in early 2017. He had no prior experience in labouring or any trade qualifications. He did not hold any High Risk Work Licence (HRWL) in Western Australia, including in the forklift (LF) class.

The victim’s younger cousin (worker 2) was also employed as a general labourer. He did not hold any High Risk Work Licence (HRWL) in Western Australia.

Both the victim and worker 2 lived at the residence located on Block 1. They were each paid $15 an hour by the offender, and $50 was taken out of their pay each week for rent. The victim’s duties included but were not limited to house cleaning, driving, gardening, deliveries, cleaning debris on the construction site and the movement of construction materials on site. The offender did not provide the victim or worker 2 with a workplace induction, training in safe work procedures, or provide them with written safe work procedures or any information in relation to the safe use and maintenance of forklifts.

The offender owned a yellow Toyota Forklift model number 027FG40 (the forklift) at the time of the incident. The keys were usually left in the forklift for ease of access for any employee or contractor who needed to use it.  The offender had no system in place at the time of the incident, or leading up to the incident, for ensuring the forklift was regularly inspected and maintained. The offender did not keep any maintenance or service records for the forklift. There were no procedures in place for what employees should do if they identified a maintenance issue with the forklift.

Offence

Incident

The director was in Perth in mid to late February 2018. On the afternoon of  27 February 2018 the director was at the Beenyup Road property and instructed the victim to use the forklift to clear a fire break of pallets of bricks/tiles and debris. Worker 2 later assisted with this task. Both worked into the early evening.

Prior to using the forklift the victim did not conduct any assessment of the forklift or a pre-start check of the forklift. The victim did not know what a pre-start check was as this had not been explained to him by the offender.  The victim had not read the operator’s manual for the forklift and did not know he needed to read the operator’s manual. This had not been explained to him by the offender. The only operator’s manual held by the offender in relation to the forklift was in English, French, Spanish and German. The victim could not read or write in any of these languages.

Between approximately 6-7pm, the victim was driving the yellow Toyota forklift to conduct this work. At this time, the victim and worker 2 were working alone with no supervision. The victim had the tines in a low position and could see over the load. He noticed that the chains on the forklift were a bit slack.  He lowered the pallet to the ground, reversed the forklift, backed out and stopped the forklift. He left the driver’s seat of the forklift to walk around to the front of the forklift and have a look at the chains.  He asked worker 2 to go and fetch a spanner from another part of the property.

The victim had not been instructed by the offender in how to deal with maintenance issues, faults, or problems on the forklift. He thought that he was responsible for any damage to the forklift, and therefore had to try and fix the forklift himself.

He noticed the chain was crooked and was partly coming off the wheel that it should have been on.  The victim picked up some plastic nearby that he had used to wrap pallets. He put the plastic against the chains because they were dirty. He then stood in the cab of the forklift and leaned forward, trying to grab the chains with both hands and lift them back on to the wheel.

As soon as he grabbed the chains, the chains tensioned suddenly and his hands became caught. He could not remove his hands.  By this stage it was getting dark, and no other person was around. The victim tried to use his abdomen to press against the horn to alert anyone nearby. After several minutes worker 2 came back to the incident location. The victim told worker 2 to phone the supervisor and ask him to call an ambulance and the Fire Brigade services.  The ambulance arrived, however the paramedics were unable to free the victim’s hands. The Department of Fire and Emergency Service Firefighters were called and arrived sometime later and were eventually able to remove the victim’s hands from the chains.

The victim was rushed to hospital as several of his fingers on each hand had been amputated by the incident.

Serious Harm

The victim received extensive injuries to his hands, primarily amputations of several fingers, which endangered his life and left him with permanent injury. He underwent major surgery soon after the incident. He then underwent further surgeries in an attempt to re-attach some of the missing fingers.

 On his right hand, three of the victim’s fingers (index, middle and fifth) have been fully amputated at the base joint. The ring finger was amputated in the accident, and has been re-attached. However, it is severely restricted in movement and can only be moved at the base joint not at the middle knuckle.

On his left hand, the victim’s index and middle fingers have been amputated at the middle knuckle. The ring finger was re-attached but is permanently curved and can only be moved at the base joint and not at the middle knuckle joint. The thumb and fifth fingers were uninjured.  He has been advised that this is the way his hands will remain, with no further improvement. He is right hand dominant.

The Hazard

The offender did not as far as is practicable provide and maintain a working environment in which its employees are not exposed to hazards.  The hazard (“hazard”) in the working environment was any employees’ hand or hands being caught in a potentially dangerous part of the forklift, including the forklift chains. The offender’s failure to provide and maintain a safe working environment caused serious harm to the Victim.

Foreseeability

A reasonable person in the position of the offender would have foreseen the Hazard.  There was a clear sign on the forklift that read (in English):“NOTICE: This machine to be used by trained operator only”.

The forklift also had a clear sign on it that said (in English):“WARNING: Do not operate unless you have read the Operator’s Manual for the vehicle”.

This should have made it clear to the offender that anyone operating the forklift needed to be licensed and trained in the safe use of the machinery.

It is reasonably foreseeable that instructing someone to operate a forklift when that person has no training or knowledge in how to operate a forklift is hazardous and may result in serious injury or death.

The Assessment Criteria for obtaining a High Risk Work Licence in the LF class, the Toyota Operator’s manual for the forklift, Toyota’s “Operator’s Manual for Safety Operation” of forklifts, and the Commissioner for Occupational Health and Safety’s 2008 Guidance Note titled ‘Working Safely with Forklifts’, are a few documents readily available at the time of the incident that cover important safety topics for operating forklifts, including the following:

a.             Employers are responsible for developing safe work procedures for forklifts, this includes providing instruction and training to people who operate, inspect, maintain, store or transport forklifts, or who work in the vicinity of forklifts;

b.             A forklift can only be operated by someone who holds a High Risk Work Licence in the appropriate class;

c.             The operator of a forklift should never put their hands in moving parts of the forklift, or in between the uprights of the forklift mast;

d.             The operator must conduct a pre-start check on a forklift and read the manufacturer’s operating instructions;

e.             Forklifts should be regularly inspected and maintained, the driver of a forklift should not attempt to undertake maintenance themselves;

f.              If the operator of a forklift identifies any damage or defects on the forklift, they should isolate the forklift and report it to the appropriate person;

g.             The forklift should only be operated in adequate lighting conditions;

h.             The operator should be aware of the safe procedure once they identify a fault or maintenance issue on the forklift; and

i.              Maintenance is to be carried out by trained and qualified personnel only.

As at the date of the incident, no supervisor at the offender had read the operator’s manual for the forklift. The offender did not make the victim aware of the importance or need to read the operator’s manual, or any other safety manuals relating to forklifts. There was no operator’s manual available to the victim in a language he was able to understand. The offender did not keep any maintenance or service records for the forklift. The keys were left in the forklift so that any employee could access and operate the forklift.

Offence

It is a requirement of the OSH Act that an employer notify the WorkSafe Commissioner forthwith of any incident at a workplace that involves an employee suffering an injury that is prescribed for the purposes of that section. The victim’s injury included several amputated fingers on each hand and therefore was a prescribed injury.

The incident resulting in the victim’s injury occurred at around 7pm on 27 February 2018. WorkSafe did not receive any notification from the offender in relation to the incident until 28 March 2018, some four weeks after the incident. This is despite the offender being well aware of the incident and the serious injuries to the victim on the date that it occurred.

Before completion of trial, the Offender formally entered guilty pleas to Charge 1 and 2 on 19 Sept 2022. The Magistrate fined the offender on 5 December 2022 at sentencing with the following : Charge RO 1144/21 – Failing to provide a safe working environment and causing serious harm – Fine of $220,000.00 (reduced from $250K)

Charge RO 1146/21 – Failing to forthwith notify the Commissioner of a prescribed injury – Fine of $20,000.00 (reduced from $30K)