In a case that highlights the risks of poor communication between multiple organisations on a worksite, a NSW labour hire company has been fined $100,000 over the death of a worker crushed by a forklift.
The Industrial Court of NSW heard that DMP Container Labour Pty Ltd placed the worker, an independent contractor, with its client company Vanguard in April 2007, to carry out work involving moving and reorganising recycled glass bottles on pallets.
Vanguard was carrying out this work in conjunction with another company, Personalised Freight Management (PFM) at a warehouse in Villawood, NSW.
Justice Frank Marks said the worker started his placement on April 13. On April 20, another worker saw him driving a forklift when it toppled over and crushed him.
There was some evidence that the tynes of the forklift had been fully extended and raised to a height of 20 feet, and that the worker had been making a sharp turn, when the forklift tipped over, Justice Marks said.
He said the worker wasn't a trained forklift driver and under Vanguard's contract with DMP, none of the DMP workers were supposed to drive forklifts at the site.
According to the Standard Operating Procedure document devised by DMP, when pallets needed to be moved, DMP workers should ask one of the qualified PFM forklift operators to carry this out.
However, the PFM staffer that DMP nominated to supervise the work had given some DMP workers, including the deceased man, permission to use the forklifts themselves.
The Court heard that although the SOP stated forklift work was to be done by PFM, it didn't specifically proscribe DMP workers from doing it themselves. Nor did it explain how the work would be done if PFM staff weren't available.
PFM supervisor let worker drive forklift
The PFM supervisor gave evidence that shortly after the worker started, he asked if he could use a forklift, as he planned on getting his ticket and wanted to practice.
The supervisor said he observed the worker on a forklift and "he seemed very competent", and that he outlined strict boundaries within which the worker could use it.
However, another contractor on the site gave evidence that he witnessed the worker going outside these boundaries, moving pallets unnecessarily, and "doing wheel spins and burnouts".
Labour hire firm pleads guilty to breach
DMP pleaded guilty to breaching s8(2) of the former Occupational Health and Safety Act 2000, but argued that its liability was reduced because the worker had been expressly told not to use a forklift by the DMP manager, and the "blame for the incident clearly lay with PFM and [the supervisor]".
But Justice Marks said it was DMP that nominated the PFM staffer to supervise its independent contractors.
Ultimately this "constituted failure on the part of the defendant to ensure that there was proper supervision because [the staffer] failed to discharge his supervisory function in a proper and appropriate manner".
He said that in determining penalties, he had taken into account that there was some culpability on the part of the supervisor, that DMP had a previously clean record, that it had a number of OHS protocols in place before the accident, and that it significantly strengthened these protocols afterwards.
The maximum fine for the offence was $550,000. The Judge ordered DMP to pay a penalty of $100,000, and court costs.
Inspector McGrath v DMP Container Labour Pty Ltd [2012] NSWIRComm 40