Magistrate’s reasoning sure to be examined closely in transport and logistics industry
The first outing of the national work health and safety law has seen the contractor of a trucking firm fined more than two thirds of the maximum penalty allowed.
That contractor, Kenoss Contractors, was itself contracted by the Australian Capital Territory government for road resurfacing works when a fatal accident occurred in March 2012.
This has now led to a $1.1 million fine, with ACT industrial magistrate Lorraine Walker noting that the incident, while not the worst, was getting there.
Despite multiple safety failures and despite his many responsibilities, project manager Munir Al-Hasani was found not to have been an “officer” of Kenoss and his charges were dismissed.
Walker’s reasoning is likely to be looked at closely by managers and their legal advisors, particularly in transport and logistics, given a truck driver died in the incident.
“Mr Al-Hasani had responsibility as an employee but he is not charged in that capacity,” she rules.
It is noted in the judgement that the Brendas family ran Kenoss, with Beverly Brendas as sole director, Spiro Brendas as general manager and son Dmitri employed as a safety officer despite his having “no experience or qualification in safety systems”.
The ACT government has underlined the general importance of the keenly awaited ruling and penalty.
“The Kenoss case is one of the first in Australia where a company has been punished under new nationally-harmonised work health safety laws,” a spokesperson for acting ACT workplace safety minister Simon Corbell says.
“The fine sends a very strong message to the industry about the importance of workplace safety, particularly the well-known risks associated with working near overhead power lines.
“It is also worth noting there were simple methods available to manage and even to eliminate the risk that were not utilised.
“Two expert reports identified a distinct lack of safety systems in place within the defendant’s operations.
“The company is in liquidation, but this does not prevent the court sentencing the defendant or imposing a penalty.
“The circumstances in this case were very serious and led to a tragic result.”
ACT WorkSafe commissioner Mark McCabe has been quoted as saying the penalty was a “very strong” warning to company leaders nationally.
“This is a massive fine – in OHS terms, it’s probably the biggest we’ve seen in this country, or pretty close to it,” McCabe adds.
David O’Meley Truck Hire driver Michael Booth died of electrocution when his tip truck was operating beneath low-hanging power lines.
It was found that despite the known risk of using the site, there was no effort to move it to safer ground, mitigate the risk or erect signs warning of where the dangers lay.
A Kenoss’ Safe Work Method Statement (SWMS) from two years earlier addressed the issue of construction under overhead power lines and highlighted a number of possible controls.
The issue was brought to the attention of Kenoss workers at a ‘tool box’ talk in the month before the incident but without Booth present.
“Kenoss clearly had a duty of care to those who visited its sites, including sub-contractors such David O’Meley Truck Hire and its employees including Mr Booth,” Walker finds.
“That duty was clearly breached in failing to take adequate measures to address the risk posed by live overhead electric cables.
“The general risk relating to overhead lines was identified and broadly addressed in the SWMS.
“However, the specific risk at the Boldrewood Street compound, although identified, was inadequately addressed.
“The limited measure of restricting Kenoss’ employees’ use of the site did not satisfy their safety duty.
“There is no evidence that the risk to other visitors was even contemplated never mind addressed in the multiple simple ways available and identified above.”