Judge Fantin in the District Court in Cairns on 2 March 2018 gave judgment in an appeal by Workplace Health and Safety Queensland (WHSQ) who claimed the sentences imposed by a magistrate against two defendants were too lenient.
In September 2015, a Dutch seasonal worker on a banana farm at Tully, suffered minor injuries when he was thrown from the operator’s seat of a tractor when it left a gravel farm road and went into a drain. The tractor was fitted with a rollover protection system (ROPS). However, the tractor was not also fitted with a seatbelt.
The farm operator, Mac Farms Pty Ltd, was responsible for the management of six farms involving growing, harvesting and packing bananas, which employed up to 550 workers. Some 120 to 130 workers, of whom about half are seasonal workers – typically backpackers including the Dutch worker, worked on the farm where the accident occurred.
The farm operator was charged under the Work Health and Safety Act 2011 (“the Act”) essentially amongst other reasons, for failing to ensure the health and safety of its workers by assessing hazards, and in particular not ensuring the tractors had a suitable combination of operator protective devices, and when fitted with a ROPS ensuring they also had a seatbelt fitted.
The tractor was not owned by the farm operator. The owner and supplier of the Kubota tractor was a different company, Mac Plant Pty Ltd. It also had a duty under the Act and was charged for supplying the tractor with a ROPS but no seatbelt, and for similar reasons as the farm operator was alleged to have failed to comply with its duty under the Act.
The two companies pleaded guilty to breaching the Act.
The magistrate when sentencing took into account that the Dutch worker admitted to driving too fast and losing control, he had been warned about excessive speed and due care in the past, and other factors such as the steps the defendants put in place after the incident, namely the immediate installation of seatbelts on the tractors with ROPS. Perhaps significantly and fortunately for all involved, the worker had only sustained a minor injury.
The magistrate sentenced the farm operator with a $1,000.00 fine plus $1,089.40 in court costs. The tractor supplying company was fined $2,000.00 with $89.40 court costs. In each case no conviction was recorded. It was these sentences that WHSQ appealed against as too lenient.
Judge Fantin agreed with WHSQ and decided that the magistrate had not placed sufficient weight when sentencing on the gravity of the risk of injury of failure to fit seatbelts which nullified the effectiveness of the ROPS. The risk of injury was very serious. The potential injury guided how a sentence should be determined, not the actual injury.
She also found the magistrate had put too much weight on the other factors such as the Dutch worker’s conduct and that there had been no serious injury suffered by the Dutch worker.
The fines were increased for the farm operator to $10,000.00 (when the maximum could be $30,000.00), and for the company that supplied the tractor, $35,000.00 (when the maximum could be $500,000.00). A conviction was also recorded against both defendants.
Reading between the lines the two Defendants may be owned by the same or related parties. Presumably separating the ownership of the plant and equipment from the business of farming was done for taxation and/or asset protection reasons. This not an uncommon legal structure for farmers. However, this legal structure potentially in this case has triggered the unforeseen consequence of significant fines and convictions being imposed on two companies, not just one!
This case demonstrates the need for all employers, as well as suppliers of plant and equipment, to continually risk assess and ensure plant and equipment is regularly serviced and maintained, including that the plant and equipment comply with all relevant legislation, regulations, codes of practice and safety standards.
If the Dutch worker had of died the two companies, directors and/or senior officers may have been subjected to the new industrial manslaughter laws in Queensland which provide for jail time if it was found to be criminally negligent not to have fitted seatbelts.
If our employer clients unfortunately have a work place accident occur, and WHSQ are required to be notified, we recommend our clients also immediately contact one of our experienced lawyers to obtain advice to ensure their rights are protected.
Darren Sekac is presenting on the topic of the new industrial manslaughter laws at the upcoming Resource Industry Network (RIN) 2018 Safety Conference on 23 March 2018 in Mackay. Please visit RIN’s website if you are interested in attending the conference and have not already registered.
