Supervisor found culpable and penalised for work health and safety breaches

The South Australian Employment Tribunal (SAET) has recently issued a record fine to an employer for a Category 1 offence under the Work Health and Safety Act 2012 (SA) (WHS Act), as well as fining its Production Manager.

In the decision of Farrell v JMA Engineering Pty Ltd (ACN 008 185 082) and David Pahl [2024] SAET 100, His Honour DPJ Crawley ordered substantial penalties after an apprentice was killed at work.

Facts

J.M.A Engineering Pty Ltd (JMA) is a fabrication and manufacturing business in Berri, South Australia. Notably, JMA’s core business is for the fabrication of stainless steel tanks for wineries, with Mr David Pahl being the production manager at this facility.

As part of the construction process, workers relied on overhead gantry cranes to lift these stainless steel tanks, which weighed several tonnes, so that welding could be done from inside and outside of the tank frame. Accordingly, JMA had an obligation to take all reasonable steps to ensure that the tanks would not fall and, if they did, that no one would be underneath them.

On 23 February 2021, an apprentice was killed when he was standing under a tank that fell and crushed him.

As a result of this incident, JMA pleaded guilty for a Category 1 offence (which had a maximum penalty of $3 million) under the WHS Act on the basis that JMA:

• had a health and safety duty;
• without reasonable excuse, engaged in conduct that exposed an individual to risk of death or serious injury;
• knew (or ought to have reasonably known) that the condition of the gantry crane’s cable used for suspending the tanks had deteriorated;
• without reasonable excuse, failed to carry out appropriate inspections and/or maintenance of the gantry crane to ensure reasonable safety;
• engaged in conduct that exposed Mr Fuss to risk of death or serious injury; and
• was reckless as to the risk of death or serious injury to Mr Fuss.

Mr Pahl also pleaded guilty to a Category 2 offence (which had a maximum penalty of $150,000) under the WHS Act, on the basis that he had:

• a health and safety duty as the production manager;
• breached his health and safety duty, exposing workers to risk;
• known or ought to have reasonably known the deteriorated condition of the gantry crane, given that he had been shown a damaged section;
• failed to take reasonable care because he failed to undertake adequate investigations as to why the damage had been identified; and
• exposed the workers to a risk of death or injury.

Decision

In His Honour’s findings, it was observed that although JMA had a basement under the floor of the facility, which a worker could then enter the stainless steel tank via a trapdoor, it had ‘become the system of work’ at JMA for workers to simply go under the suspended tanks to gain access to the interior, notwithstanding the presence of a sign stating ‘overhead crane – stay out from under suspended loads’.

Further, JMA did not engage in any structured or regular routine maintenance of its gantry cranes in accordance with the relevant approved codes of practice. This was despite this question being raised internally in November 2020 and JMA refusing an offer from a crane servicing business to engage in scheduled servicing.

It was noted that despite being notified on two occasions of the frayed cable on the gantry crane, Mr Pahl did not order a cable replacement or investigation but rather instructed a maintenance electrician with no experience in cable re-threading to undertake repairs.

His Honour also considered expert opinion post incident, which identified several deficiencies with the gantry cranes at the facility. Further, it was also identified that the limit switches were not set correctly on the gantry cranes, resulting in the cables becoming compromised over time and reducing their load carry capacity.

It was also relevant that a previous injury in 2019 which led to no prosecution should have made it clear that JMA’s safety protocols needed work, yet the latest incident indicated that safety remained a significant issue.

In addition, whilst His Honour considered the 170 work safety practices that JMA had introduced after the incident, it equally highlighted significant failings of JMA’s systems to warrant so many changes necessary. Accordingly, JMA was fined $840,000, with a recorded conviction and a training order pursuant to section 241 of the WHS Act.

For Pahl, His Honour noted that he took no action to address the unsafe system of having the tanks suspended overhead, despite being in a significant level of authority at JMA. Importantly, it was concerning that Mr Pahl did not adequately respond to the repeated complaints of the fraying cable and instead opted to have it repaired without consulting the maintenance manager or conducting an investigation into the issue adequately.

Notwithstanding the above, His Honour accepted that Mr Pahl had been significantly impacted by the incident, which in itself was a significant penalty. Accordingly, Mr Pahl was imposed with a $12,000 fine and a recorded conviction.

Take Home Messages

This decision highlights that the courts can and will penalise supervisors for breaches of their work health and safety duties.

Employers need to ensure that supervisors are acutely aware of their work health and safety obligations. Whilst it is common for supervisors to be entrusted with responsibilities as a person conducting a business undertaking under the WHS Act, they should also be trained accordingly to fulfil this obligation.

Further, incorrect common practices, that do not comply with standard operating procedures, should be immediately flagged and rectified, particularly when involving worksites and machinery. Although in the short term it can be easier to take a shortcut to address an issue, the long-term effects can be quite fatal.

In the event of an identified breach and/or safety concern, supervisors should ensure appropriate investigations are undertaken, rather than ad hoc ‘band-aid’ fixes, in accordance with the relevant Australian Standards, industrial instruments or policies and procedures.

For more specific information or advice on any of the material contained in this article, please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, or Annabelle Narayan on +61 8 8210 1292 or at anarayan@normans.com.au, or Adarsh Jacob on +61 8 8217 1372 or ajacob@normans.com.au.