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A workplace incident involving a worker struck by a forklift has demonstrated the importance of having documented systems of work and induction processes in place that are accessible for all workers.

The worker was employed as a stock picker by Phong Warehouse & Distributor Pty Ltd (Phong). Phong was contracted by Williams Pressing and Packing Service Pty Limited (Williams) to provide stock picking services out of its warehouse.

On the worker’s second day of employment, a forklift exiting from an aisle of the warehouse drove over her feet, causing her to suffer injury to her toes.

Both Phong and Williams were charged with and pleaded guilty to breaches of the Work Health and Safety Act 2011 (NSW) (see SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253 and SafeWork NSW v Williams Pressing and Packaging Services Pty Limited [2018] NSWDC 409).

In both cases, the NSW District Court heard that Williams had an undocumented forklift procedure in place which was verbally advised to employees. This procedure required workers to give way to forklifts, keep a three-metre exclusion zone from the forklift, exit the aisle before the forklift entered the aisle, and not enter the aisle until the forklift had exited the aisle.

Other deficient systems of work identified included:

• Not having a traffic management plan addressing the risk of working with a moving forklift. The NSW District Court held that guidance material relating to traffic management, warehousing and industrial lift trucks were readily available and applicable;
• Not providing barriers to create an exclusion zone between forklifts and workers;
• Failing to take steps to consult with contractors to ensure that workers were trained and supervised. It was held that Williams did not take steps to consult and engage with contractors to ensure that all workers were trained and supervised;
• Pedestrian markings were worn and no longer clearly visible; and
• Failing to ensure that workers were provided with information and training about working with forklifts. The NSW District Court noted that while Williams did have an induction system in place, it was only written in English. As a result, the handbook had to be verbally explained in Vietnamese to the worker and other Phong employees from non-English speaking backgrounds. In addition, the induction workbook included an acknowledgement which was to be signed by workers and kept on their file, however signed acknowledgements were not followed up.

Following the incident, Williams and Phong made a number of changes, including implementing a traffic management plan and inducting workers in the traffic management plan and workplace again. Phong also developed a new separate induction program where workers complete an induction by Phong and then Williams, with Williams collecting induction records.

As a result of their failures to comply with a work health and safety duty, the NSW District Court convicted both Phong and Williams. In relation to Williams, the NSW District Court found that Williams was more culpable than Phong as it had control over the warehouse and the forklift and engaged Phong to supply labour. It held that Williams was obliged to ensure that all workers, including Phong workers, were safe from the risk of collisions between the forklifts and pedestrians.

Phong was ordered to pay a fine of $30,000 and costs of $18,000. Williams was separately ordered to pay $60,000 and $20,000 in costs.

Lessons for employers

The incident and the separate prosecution of both Phong and Williams by the regulator highlights the operation of work health and safety laws, which provide that persons conducting a business or undertaking have a primary duty of care to ensure the health and safety of workers, including contractors, at work, so far as is reasonably practicable.

The cases also demonstrate the importance of having safety systems documented and of having regard to the minimum standards set out in Codes of Practices and Guidance material released by regulators.

To ensure that they are meeting their health and safety duties, at a minimum, businesses should consider:

• Implementing and enforcing safe systems of work, including safe work methods statements, holding regular safety meetings, communicating safety risks to workers and conducting risk assessments;
• Inducting all workers into the workplace upon commencement and ensuring that they understand safety processes and procedures;
• Regularly training workers in safe systems of work in a format that is accessible; and
• Retaining induction and training records. Such records will be useful to demonstrate and confirm that training was undertaken.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.