A New South Wales court has issued a stern warning to family-based primary production businesses that safety standards must be strictly enforced. Now is the time to confirm safety compliance, and consider the way primary production businesses are structured to manage WHS liabilities.
Background
The defendant was a prominent figure in Australia’s poultry industry who was in partnership with their spouse in an agricultural business that included a farm. Although there was no written partnership agreement between the two, the defendant was involved in the day-to-day operations while their spouse was involved in the Human Resources matters for the farm’s fifteen employees.
The incident occurred during a repair process where a worker’s hand became trapped in a conveyer belt. In order to reach the end of the conveyer belt, the worker was standing on a pallet elevated on forklift tynes. Their hand was pulled into the top roller when the conveyer was accidentally activated, resulting in broken fingers and severe lacerations. The incident was not immediately notified to SafeWork NSW, but was later notified by a family member of the worker. The incident site itself was not preserved – the forklift and pallet were moved, and the conveyer was repaired.
The Court heard that before the incident, there was no documented protocols for repairing the conveyer, no fall protection measures or training, and no system to lock out and deactivate the conveyer during repair work. The Court also noted that on the day of the incident, the farm’s work platform with railings was not placed on the forklift, and did not comply with the relevant Australian Standard.
The decision
The defendant pleaded guilty to a category-2 breach under section 32 of the New South Wales Work Health and Safety Act 2011 (NSW) (WHS Act), and offences under section 38 of the WHS Act, for failing to notify SafeWork NSW of a notifiable incident, and section 39 of the WHS Act, for failing to ensure the site of the notifiable incident was not disturbed.
The Court noted that while the duties required a high standard of compliance, significant penalties were necessary to convey to family-based primary production businesses that safety standards must be strictly enforced. In sentencing, the Court considered the offender’s good character and no prior convictions, and a submission from the offender’s spouse that they were unaware that the injury was notifiable. The offender was convicted and fined a total of $42,000.
Key takeaways
It is important to note that a person conducting a business or undertaking (PCBU) has a primary duty of care to ensure the health and safety of workers while they are at work in the business or undertaking and others who may be affected by the carrying out of work, such as visitors.
A PCBU can include a company, sole trader or, as in this case, partners in a family partnership. Significant liability attaches to a PCBU under the WHS Act, so it is important to consider this potential liability when structuring food and agribusiness operations.
Contact us for assistance with:
- structuring your business to limit WHS legal liability; and
- achieving compliance with the WHS Act.
