Record payout to Comcare over fatal brake failure highlights supervisory weakness
A six-point maintenance improvement plan in Perth has failed to head off a huge fine on Transpacific and lawyers say this should act as a cautionary management oversight outcome.
Waste handling firm Transpacific Industries was fined $363,000 for breaching federal work health and safety laws related to a fatal accident in Perth involving its Cleanaway operation.
The little-reported case hinges on brake and slack adjuster maintenance before and after a fatal crash on February 28, 2011.
Justice Michael Barker handed down the penalty in the Federal Court of Australia in Perth, following proceedings brought by federal work health and safety regulator Comcare, which was involved as the company’s insurer due the risk to the truck driver.
Comcare says it is the largest penalty against an employer as a result of a single court action that it has brought and McCabes lawyers put the fine at about 75 per cent on the court’s unofficial scale of seriousness.
It is also the first time multiple breaches of Commonwealth work health and safety laws have been found against an employer in regard to an ongoing risk to health and safety, it adds.
“Employers should review their policies in relation to work health and safety to ensure that they have sufficient monitoring systems in place,” McCabes principal Maurice Baroni and senior associate Rosemary Patti, in case notes co-written by law graduate Kate Hollings, say.
“Specifically, employers should have a routine supervisory system to ensure all employees are fulfilling tasks appropriately and safely.
“In order to comply with their obligations under the work health and safety legislation, employers should also ensure that systems, policies and checklists applicable to safety in the workplace are detailed and completed correctly.”
Despite maintenance records stating they had been checked, the vehicle examination report found that because the retaining nut on the control arm of the right slack adjuster was loose, and the retaining nut on the control arm of the left slack adjuster was missing, they could not properly compensate for wear on the brake pads on the front brakes of the truck.
The lawyers left unnoted that a subsequent examination of the truck involved by the Western Australian Department of Transport passed it as roadworthy, although it still had brake defects.
Transpacific returned the truck to service on or about March 28, 2011, without having detected or rectified the brake defects.
Though it was later signed off as checked twice by company mechanics, the brakes failed to be rectified until Comcare sent an improvement notice on May 13 that year. This was seen as indicating oversight was lacking.
“There needed to be a properly thought-out system of supervision, including with respect to brake linings, in place at all material times, and there was not,” Justice Barker finds.
“There needed to be proper adherence to checklists and to have checklists which, perhaps, more fully and systematically identified all the various things that needed to be investigated, and there was not.
“In this case, there was also a need to ensure that a particular mechanic employs was adequately supervised, given that his work had been noted as less than satisfactory and a warning has been given to him previously.”
Transpacific tells the court that it has since:
- amended the form of the work order pursuant to which its mechanics service its trucks, so that the former item “check and adjust brakes” has been replaced with an item which specifically requires the mechanic to confirm on the work order that he or she has checked the automatic slack adjusters on the brakes of the truck and has found them to be operating at maximum efficiency
- implemented a system in the workshop whereby its supervisors randomly check the work done by its mechanics in servicing the trucks, to ascertain if all items on the work order have been carried out
- provided all its mechanics with a standard gauge for measuring the thickness of the brake pads on the trucks which they service
- introduced a system of formal monitoring of the performance of those of its employees who have received warnings for poor work practices
- taken steps to replace old program with a new computerised fleet management system which will allow detailed analysis of all recorded service data, and will also identify trending and anomalies in that data
- purchased and installed at its Malaga depot a heavy duty roller brake tester, and has developed a system whereby, as part of the annual service of all of its trucks, the truck is driven across the roller brake tester, and its braking resistance is recorded and compared with road worthiness requirements.
For Comcare CEO Jennifer Taylor, the case highlights the need for employers to provide robust safety systems, particularly for heavy vehicles.
“This case showed ongoing, systematic failures in safety practices,” Taylor says.
“It’s also a reminder that in such cases, Comcare will not just consider the final result.
“We will examine every opportunity a company has had to fix these issues, and we will take appropriate enforcement action.”