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The Department of Home Affairs has issued its draft guidance “Modern Slavery Act 2018: Draft Guidance for Reporting Entities” (Draft Guidance) for the new Modern Slavery Act 2018 (Cth) (the Act).
There are lessons to be learned by the mining industry from a Victorian decision which resulted in a major shipping company being convicted under OHS laws and fined $1 million. Both the mining and shipping industries involve pedestrian workers interacting with “monster vehicles” day in, day out, in conditions where visibility and/or audibility may be poor. The risks seem obvious to those of us who are not accustomed to working with heavy mobile equipment, but complacency can creep in when the sight and sound of huge vehicles becomes routine.
The case of Director of Public Prosecutions v Toll Transport Pty Ltd Pty Ltd  VCC 1975 highlights the importance of staying vigilant to the inherent danger that such an environment presents to workers, as the Court’s sentencing remarks made clear: “A strong message needs to be sent to employers whose employees are placed in highly dangerous situations… that they must do their utmost to ensure the safety of those employees… in environments, as was the case here, where the risk of catastrophic injury is high, constant and readily foreseeable, the term ‘so far as reasonably practicable’ must involve the creation of strict, rigorous and comprehensive standards which are then religiously maintained.”
In weighing up what steps are “reasonably practicable” to keep pedestrian workers safe from the risk of collision with heavy vehicles, companies should think about whether the risk is magnified by poor visibility or audibility (due to the noise of the vehicle or workers wearing ear protection or both) and if so, whether a dedicated “spotter” is required. Companies should also consider whether there are other steps that could be taken which, for a relatively low cost, could eliminate or greatly reduce the risk, for example, installing cameras or alarm systems to vehicles to assist drivers to move safely around pedestrians.
The County Court of Victoria heard that Mr Anthony Attard was killed when a prime mover ran over him while he was laying mats on the floor of a ship, in readiness for the prime mover to pull “MAFI trailers” onto the ship. Mr Attard had been employed by Toll Transport Pty Ltd as a Grade 5 stevedore.
Toll pleaded guilty to breaching section 21 of the Occupational Health and Safety Act 2004 (Vic), which is in almost identical terms to section 9(1) of the Mines Safety and Inspection Act 1994 (WA). The section requires an employer, so far as reasonably practicable, to provide and maintain for employees a working environment that is safe and without risks to health.
The Court heard that shipping containers were loaded on and off of the ship by a “roll on, roll off” (RORO) procedure. By the RORO process, shipping containers were placed onto MAFI trailers, which are low and flat, and could each carry up to four 20-foot shipping containers by stacking two at the bottom and two at the top. When fully loaded, a MAFI trailer could weigh 90 tonnes.
A prime mover moved the MAFI trailer to its location once the containers had been placed on top of it. When delivering the MAFIs to the weather deck, the prime mover had to push the MAFI trailer up the ramp. In order to do this, the driver was required to turn the seat in the cabin so that he faced the shipping container. As a result, the shipping container occupied most of the driver’s view as it was being pushed up the ramp.
Rubber mats were placed on the deck at each point of contact of the front of the MAFI with the deck. The mats helped prevent MAFI trailers sliding around on the deck when the ship was moving. Three rows of MAFIs were placed at the front of the deck and occasionally there would be a fourth row. The rubber mats would generally be left in place on the deck in the three row formation, and if a fourth row was required – which was the case on the day of the incident – then further mats had to be laid.
A Grade 5 stevedore was responsible for ensuring that the mats were in place. The work could be carried out by a Grade 4 stevedore, but on the day of the incident, the Grade 5 stevedore, Mr Attard, was placing mats on the weather deck himself. There was no Grade 4 stevedore on deck assisting him.
Toll’s written safety instructions suggested the use of ear protection and other personal protection equipment, and Mr Attard was wearing ear plugs at the time of the incident. Prime mover operators also wore hearing protection.
A prime mover pushing a MAFI trailer came up the ramp to the deck where Mr Attard was working.
The driver of the trailer could only see the MAFI trailer and the container on it. He had to hang his head to the left so that he could see up the ramp. The driver saw that the path was clear, but he couldn’t see on the right hand side of the MAFI trailer. When the driver came to the crest of the ramp, he “gave the wheel a bit of a kick to the left, to get the MAFI to the right”, and continued without stopping. The driver was “rolling on” the first row of MAFI trailers, and had gone some distance on the deck before noticing that something was wrong.
He noticed that the vehicle was not reacting how it normally would, and then looked around and saw a young woman to his right, waving her arms. He could not hear her, but saw that she was telling him to stop and so he applied the brakes. As soon as the driver stopped the tractor, he got out and saw the he had run Mr Attard over. He could hear Mr Attard screaming. The driver telephoned his supervisor to call an ambulance, and then collapsed. Workers used a forklift to lift the MAFI trailer off Mr Attard.
Paramedics attended Mr Attard, but he was declared deceased at the scene about 40 minutes later.
In examining how an incident like this could happen in the course of carrying out regular duties with other workers nearby, we can look to the accounts of those who observed the incident.
One witness saw Mr Attard walk down the deck and pick up a mat. The witness saw the MAFI trailer start to move towards Mr Attard. As the MAFI trailer moved closer to Mr Attard, the witness yelled at the driver to stop but he did not hear her. Another witness was moving chains when he noticed Mr Attard putting some mats down. At some point, the witness looked around and noticed that Mr Attard had his back to the driver of the tractor. The witness believed that the driver could not see Mr Attard. He said: “When we looked around, he was on the ground, face first. The wheels on the container ran over him. We were just screaming to the driver to stop but he couldn’t see us because there was no window on that side of the driver.”
The evidence is clear: the driver of a MAFI trailer weighing up to 90 tonnes could not see or hear properly while pedestrian crew members performed work in the vicinity. In those circumstances, Toll accepted that the consequences of failing to implement a safe system of work were significant. The Court found that Toll’s system of work was not safe so far as reasonably practicable, as it did not eliminate or adequately control the risk of collision between prime movers pushing MAFI trailers onto the weather deck and pedestrian workers.
The Court found that this was “a tragedy waiting to happen”, and that the breach was “most serious… in circumstances where what befell Mr Attard was readily foreseeable and much more could have been done to maximise the safety of the workplace.” The Court went on to say: “[Mr Attard’s] death highlighted the grave risk that the defendant company exposed its workers to, a risk of which they were aware, yet did not adequately address. In fact, it seems… that the system of work, despite a number of reviews of it prior to the accident, [was] hopelessly inadequate and vague.”
The Court found that Toll should have ensured the system was safe by ensuring that the following express instructions were provided (in summary):
Under the Mines Safety Act 1994 (WA), “practicable” means reasonably practicable having regard to:
This means that the cost and inconvenience of eliminating or reducing the risk must be considered against the degree of harm that could occur, and the probability that the harm will occur, if the risk is not addressed. In other words, what is a reasonable cost will depend on the circumstances. The Toll decision indicates that where the risk of catastrophic injury or death is high, employers are required to go to significant lengths if necessary (that is, to “do their utmost”) to prevent or reduce that risk.
In weighing up what steps are “reasonably practicable” to keep pedestrian workers safe from the risk of collision with heavy vehicles, companies should consider whether poor visibility and/or audibility are contributing factors.
If so, there may be steps that could be taken which, for a relatively low cost, could eliminate or greatly reduce the risk.
Examples might include installing cameras or alarm systems to vehicles to assist drivers to move safely around pedestrians, or (as was the case for Toll) it may not be safe for workers to operate alone, and a dedicated “spotter” may be required. Alternately, given modern technology, a spotter might be adequately dealt with by a sensor, a camera or a drone.
Many thanks to Jessica Edmeades (Graduate) for her assistance in preparing this Insight.