DET fined $300,000 for OH&S breaches

The Department of Education and Training has been found guilty of breaches to the Occupational Health and Safety Act.

Her Honour, Justice Schmidt found the Department of Education and Training guilty of breaches of sections 15 and 16 of the Occupational Health and Safety (OH&S) Act and fined them $300,000 in December last year.

WorkCover conducted the prosecution on the basis that on February 13, 1996 at Ballina High School the Department of Education and Training failed:

"(i)to ensure the health safety and welfare of all its employees and in particular Cecil Piggott, contrary to Section 15(1) of the OH&S Act 1983.

"(ii) to ensure that persons not in its employment and in particular, Cyril Jones, were not exposed to risks to their health and safety arising from the conduct of its undertaking, which they were at its place of work contrary to Section 16(1) of the OH&S Act 1983."

The incident occurred when a TAFE work experience student (Jones) had been placed under the supervision of the general assistant (Piggott). The general assistant was teaching Jones how to operate the tractor and slasher. Jones lost control of the tractor and Piggott jumped up on the tractor to assist and fell. He suffered injuries because the rear wheel ran over his chest and his foot and ankle were run over the slasher.

The Department pleaded guilty to both charges. Justice Schmidt noted that while the DET has "a comprehensive written work experience handbook" for students participating in work experience with other employers there was "no policy or handbook in relation to work experience students being placed with the defendant [the DET]".

In making her decision Justice Schmidt made a number of significant points in relation to the obligations placed on employers by the OH&S Act. Section 15(I) of the OH&S Act states:

"Every employer shall ensure the health, safety and welfare of his [sic] employees."

This places an absolute obligation on employers. Justice Schmidt said:

"It has now long been recognised that the onerous obligations which this legislation imposes requires that a pro-active approach to safety be adopted. Employees need to be protected against their own actions which put their safety at risk, whether that be as a result of foolish, negligent or even heroic behaviour. Students, such as this work experience student, plainly require similar protection. While reference was made to the employee's brave response to the circumstances with which he was faced, it was properly not relied upon by way of mitigation of the offences in question."

Her reference to the student refers to the obligation placed on the Department by Section 16(I) of the OH&S Act which states:

"Every employer shall ensure that persons not in his [sic] employment are not exposed to risks to their health or safety arising from the conduct of his undertaking while they are at his place of work."

This section applies to all students at school, not only those on work experience.

Justice Schmidt also pointed to the Department's failure to maintain equipment in a safe condition. She said: "It cannot be overlooked that while not contributing directly to this accident, the tractor concerned was in an unsatisfactory state of repair, with an unguarded rotating shaft exposed at two points, in circumstances where there was no formal system established to monitor the state of repair of the defendant's many tractors."

In explaining her decision to impose a penalty on the DET, Justice Schmidt said:

"Here the nature and quality of the offences to which there has been a plea were serious ones, as the defendant accepted in its submissions. The resulting risks to safety were both obvious and foreseeable and arose in circumstances where the defendant had not taken easily available steps which might have prevented the accident."

She concluded:

"The detriment to safety which the accident highlighted was a serious one. I have concluded that mid range penalties at the lower end are appropriate. In all of the circumstances I have concluded that the penalty which should be fixed for each offence is $180,000, but that applying the principle of totality, the total penalty should be $300,000."

Joan Lemaire is an Industrial Officer.