Proactive vs. Reactive workplace health and safety duties

In WorkSafe Victoria v Heritage Seeds Pty Ltd (2018), an employee of a Melbourne seed distribution company, was injured in the process of coating the seeds in a chemical mixture before distribution.

During the coating process, the seeds are moved through an auger conveyor (also known as a screw conveyor.) The conveyor had a door to access the content going through the conveyor which could be accessed when the machine was in operation. The employee opened the door and used his hands to attempt to unblock some seeds while the machine was still turning, when his fingers became caught and were then crushed by the rotating screw blade.

The Magistrates’ Court found that the company had failed to implement the hierarchy of controls, including elimination and isolation. The company was fined $25,000.

This case is interesting for a number of reasons:

• Under Victorian OHS Legislation Directors and CEOs of a business are not given any direct or specific duties to ensure that the business has an effective health and safety management system, including processes. Requirements are encapsulated in the Act and Regulations, but there are no direct requirements for those that run and are responsible for the business.

  
  

• This is different in the Model WHS laws. The Model WHS laws give directors and CEOs specific duties to perform, categorized collectively as “due diligence” actions. These are identified and listed in bullet point form in Section 27 of the WHS Act. Anyone can go through this Section and see what leaders are meant to be doing on a regular basis. Any top-tier management person who fits the definition of “Officer” under the Corporations Act 2001 may be charged for specific violations of any of the points in Section 27.

The whole idea of giving officers “due diligence” responsibilities in WHS is to ensure that there are people there in the business who will proactively ensure that the business is meeting its primary duties.

Every business, no matter how small, must provide the WHS management system in the first place, and must train and educate its staff to do their jobs safely, manage risks to health and safety, consult its people on WHS matters before making decisions, and other specific actions such as managing PPE, working at heights, manual handling, signage, safe operation of plant and machinery, handling asbestos and chemicals, among others.

No specific “due diligence” requirements for Officers exist in Victorian health and safety law. Officers may instead be charged under Section 144 of the Victorian OHS Act 2004 for failures to “take reasonable care” for any measures and systems that the business should have had in place but didn’t. Officers are therefore investigated and prosecuted for breaches that have occurred after the fact. This is reactive. Under Victorian law an officer “should have known” (and therefore acted) whereas the Model WHS laws state what an Officer must do, and an officer can be charged for not doing any one or more of those things. This is proactive.

In this case the Magistrates’ Court, the charge was for a failure to apply the Hierarchy of Control measures. But it is a person not a thing that has to have failed in this respect. Therefore, the directors of the business (the “officers”) are guilty of not taking reasonable care to ensure that these control measures were applied.

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.