Prosecution Details

Charge 1 - Being a person who conducted high risk work, namely operating a forklift, when they did not hold the appropriate class of High Risk Work Licence, contrary to r 6.2(1) of the Occupational Safety and Health Regulations 1996 (WA).

Charge 2 - Being a person who interfered with, altered or used plant in a manner which rendered the plant a hazard to any person at the workplace contrary to r 4.41 of the Occupational Safety and Health Regulations 1996 (WA).

BACKGROUND INFORMATION

The Offender and the Workplace

The First Offender, VL Tran Family Company Pty Ltd (hereinafter ‘the Offender’), is an Australian Company with company registration number 163 982 161 and is based in Western Australia and was set up on 28 May 2013.

The Second Offender, Van Lam TRAN (hereinafter ‘Mr Tran) is the sole Director of the Offender which operates a farm.  He speaks Vietnamese and his ability to communicate in English is limited.

The farm is situated at 703 Geraldton-Mount Magnet Road in Moonyoonooka in Western Australia, approximately 12km from the Geraldton town centre. Vegetables are grown on the farm.  A residence is located at the front of the block. At the rear of the residence is a work area comprising a level concrete hardstand and sheds. Located in the work area is mobile plant and packaging supplies. The mobile plant included a truck, a bulldozer and a forklift (hereinafter ‘the forklift’).  Vegetable growing houses are scattered around the residence and elsewhere on the block. When vegetables had been picked they were placed into ‘bins’, being cardboard packing crates.

Relationship between the Offender and Other Parties

The Offender sourced the ‘bins’ and other farm supplies from an agricultural supply company which provide services and products to rural agricultural enterprises. The ‘bins’ were transported from the agricultural supply company location to the Offender by road.

The supply company engaged a transport company for long distance deliveries and there was a particular driver who normally made deliveries to the Offender.

The transport company was unable to make a delivery and in turn contacted the victim who operated his own transport company.

The victim in turn contacted the agricultural supply company and was given a job to deliver to Geraldton on 30 August 2019. The job concerned transporting 5 pallets of cardboard boxes (the bins), 2 pallets of bags of fertiliser and 2 pallets of liquid fertiliser.

The victim was made aware that there were some communication difficulties with some of the farmers in Geraldton. He was given details for a contact person nearby to the Offender that spoke English (contact person).

29 August 2019

The victim attended the agricultural supply company location to collect the load he was to deliver to Geraldton.   A person unknown to the victim loaded the victim’s truck using a forklift which required fork extensions.  The victim observed pallets of cardboard boxes (‘the pallets of bins’) being loaded into his truck.

The pallets were approximately 2.3m high but slightly smaller in width than a standard pallet. The pallets were all different heights and some would not fit onto the back of the truck and were put back into the warehouse. The pallet bases were constructed of cardboard. The pallets of bins did not appear heavy but appeared unstable as they were being loaded onto the victim’s truck.It was the first time the victim had seen this type of pallet.

Each pallet of cardboard bins weighed approximately 850kg. The pallets of fertiliser were a standard size pallet. 

30 August 2019

The victim drove to Geraldton. He contacted the contact person who spoke English on the way for assistance with translating. Closer to Geraldton, the victim met the contact person and followed him to the Offender’s farm, arriving at approximately 12:00pm.

The contact person showed the victim where to park his truck and then introduced the victim to a person called Mr Tran. The victim was unsure what Mr Tran’s role was.

The contact person left leaving Mr Tran to unload the truck. There was a brief introduction between the victim and Mr Tran but there was no substantial communication between the two due to language barriers.

The victim started unstrapping the load whilst Mr Tran operated the forklift to unload the truck.  There was no exclusion zone established.

Mr Tran attempted to unload a pallet of the cardboard bins with some difficulty. The victim assisted Mr Tran by giving verbal instructions in English and using hand gestures. This required the victim to be within Mr Tran’s line of vision and to be close to the forklift.

Mr Tran successfully unloaded the pallet of cardboard bins from the truck. He then continued to unload pallets of cardboard bins from the truck with assistance from the victim who was in close proximity to the forklift.

As Mr Tran was unloading the further pallets of cardboard bins from the truck a pallet of cardboard bins fell from the forklift. The pallet of cardboard bins (the ‘load’) fell onto the victim, pushing him backwards and pinning him to the ground.

Mr Tran used the forklift to lift the load off the victim.

OFFENCE

On 30 August 2019 Mr Tran did not hold a high risk work license (HRWL) for forklift operation.

On the same date Mr Tran operated a forklift.  This is work for which a HRWL is required as set out in schedule 6.3, clause 9 of the Occupational Safety and Health Regulations 1996 (WA).  Regulation 6.2(1) makes it an offence to operate a forklift without holding a HRWL.

OFFENCE

On 30 August 2019 Mr Tran interfered with or altered a forklift by attaching, or allowing another person to attach, extensions (the attachment) to the standard forks of the forklift.

On the same date Mr Tran operated the forklift with the attachment fitted.

The attachment can alter the characteristics of a forklift, including the safe lifting capacity of the forklift and the centre of gravity of the load.

The attachment did not appear to be manufactured by Toyota and had no serial numbers or markings. There was no placard or additional load plate fitted to the forklift specifying the limitations of the forklift, including the safe lifting capacity, when operating with the attachment. Accordingly, no assessment had been made by the manufacturer of the forklift of the revised lifting capacity.

Mr Tran operated the forklift without regard to the changed characteristics of the forklift. 

In addition, the attachments were not positively secured to the standard forks and were at risk of becoming disengaged from the standard forks.

Mr Tran operated the forklift with the unsecured forklift extensions. Altering the forklift, and using the forklift in the altered state, was a hazard.  The interference, alteration or use of the plant did not occur by way of dealing with an accident or emergency.

The Offender plead guilty and was convicted on 17 November 2022.  The Magistrate issued a fine of $1000.00 for Charge 1 and Issued a fine of $5000.00 for Charge 2.  Costs of $1100.00 each charge were ordered.