Enforcing A Safe System Of Work Takes Practical Supervision
9 May 2001
Australia, -- A company prosecuted for having machines running without appropriate guarding in place believed that the threat of dismissal was enough to prove it had exercised due diligence in enforcing its safe system of work. It was wrong.
When a safety inspector visited a sawmill, he observed an unguarded tensioning roller in an operating waste conveyor. The guarding was leaning against a shed nearby. It was clearly possible for people to become entangled in the machinery and sustain horrific injuries. About ten persons were operating machinery at the mill at the time of the inspection. In the inspector’s opinion, it would have been practicable to have the guarding bolted on, or padlocked, or to have an electronic interlock mechanism to deactivate the belt when the guard was lifted off.
The sawmill was prosecuted in the Court of Petty Sessions for breach of the Occupational Safety and Health Act 1984 (WA). Giving evidence, the regional manager of the timber group said the sawmill had a safety policy and a safety and health committee – all employees had been instructed that machinery in operation had to have appropriate guarding in place; a guard should not be removed unless the machine was locked, switched off and had a tag on it; though the mill was over a large area and the manager could not keep every employee under supervision all the time, non-compliance with the safety measures would lead to dismissal.
The magistrate acknowledged that, in principle, there had been a system in place but found that there was no evidence of any supervision to make sure the system was adhered to. The magistrate was satisfied beyond reasonable doubt that the complaint had been proved and convicted the sawmill.
The sawmill then appealed on the ground that it had taken measures to comply with the legislation. It relied on Bunnings Forest Products Pty Ltd & Ors v Tanya Gai Shepherd & Anor [1998] WASCA 119. In that decision, Justice Anderson referred to Collins v State Rail Authority of NSW (1986) 5 NSWLR 209 at 214, where the Chief Justice had said:
"If the employer lays down a safe and proper practice and is not proven to have failed to use ‘due diligence to see that it is observed’ then ‘failure by inferior employees, even those of a supervisory rank, to observe that practice on the particular occasion will not render the authority criminally liable for the offences charged against it.’"
The Court of Appeal of the Supreme Court of Western Australia noted that, even in the Bunnings Forest Products case, the prosecution still had to prove beyond reasonable doubt that it had been reasonably practicable for the appellant itself to have taken some measure which might have prevented the relevant employee from working unsafely.
In the case of the sawmill, it had been open to the magistrate to find, as he had, that the absence of any practical supervision had been the nub of the case. Although the sawmill had laid down what could be regarded as a safe and proper practice, it had failed to use due diligence to see that it was observed. The threat of dismissal was not sufficient. Supervisory procedures were also required.
The grounds for the appeal had not been satisfactorily established and the Court of Appeal dismissed the appeal.
(Adelaide Timber Co Pty Ltd v Shepherd (WorkSafe Western Australia) [2001] WASCA 110) Soource: CCH 4 Business 
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