By Grant Mitchell, Partner and Poppy Scaife, Paralegal

A fatal crash on the South Eastern Freeway exposed gaps in workplace safety protocols.

Cleanaway failed to ensure that its employee was competent to drive a truck with manual gearing.  This resulted in an accident that caused two deaths and serious injuries to others.

Cleanaway was prosecuted under section 32 of the Work Health and Safety Act 2011 (Cth) for breach of its duties under section 19 of the Act to, inter alia, ensure as far as reasonably practicable the health and safety of its workers while they are at work.  It was convicted and initially fined $12 million.  On a previous appeal the fine was reduced to $3 million.

The South Australian Court of Appeal dismissed Cleanaway’s appeal against its convictions, reinforcing the principle that the assignment of workers to dangerous duties without relevant training or supervision breaches WHS obligations.

Key Takeaway

This case demonstrates that an employer’s duty under the Work Health and Safety Act 2011 (Cth) may extend beyond confirming general licensing requirements to include the obligation to assess practical competency, particularly in relation to high risk tasks.

Facts and Arguments

The applicant was employed as a truck operator by Cleanaway. He held an unrestricted HR licence, which he had obtained using a manual transmission vehicle.

During his initial days of employment, the applicant operated an automatic transmission vehicle under a “buddy system” but did not receive any formal driving instruction. He undertook a driving assessment in the same automatic transmission vehicle. However, the assessment did not evaluate his ability to operate a manual transmission vehicle.

Despite this, the applicant was assigned a manual transmission vehicle, without an assessment by Cleanaway of his competency or experience in driving such vehicle. On his fifth day at Cleanaway, and his seventh day driving heavy vehicles, the applicant drove a manual transmission vehicle on the South Eastern Freeway for the first time.

While descending the freeway, the applicant was unable to downshift, due to ineffective braking, resulting in the truck accelerating uncontrollably, reaching a speed in excess of 150 kmh. A collision occurred, causing two fatalities, one serious injury and severe injuries to the applicant, including the amputation of his right leg.

Cleanaway raised a number of arguments.  On one of the central issues, it argued that the employee had obtained appropriate certification under the statutory scheme and that the assessment under the statutory scheme constituted a proper determination of competence; that it was entitled to rely on the certification under “the detailed legislative scheme enacted precisely for that purpose”.

Decision

The Court of Appeal found that holding a heavy vehicle licence may not, in itself, demonstrate sufficient competency. Employers must independently assess and verify practical skills relevant to the specific work being undertaken.

The Court pointed out that ‘there is an obvious difference between being properly licensed and certified and being competent to perform particular tasks in a range of settings, when not all of these may necessarily have been assessed in the course of licensing and certification.’  In the case at hand, the relevant driver lacked both experience and expertise in connection with a hazardous downhill stretch of the Freeway.

The Court found Cleanaway failed to ensure the health and safety of its workers and others affected by its operations by assigning the employee to operate a manual transmission truck without adequate training, supervision or assessment of his ability to safely navigate high risk routes, in this case, the descent of the South Eastern Freeway.

Cleanaway breached its WHS duties by failing to implement a safe system of work and not properly determining the employee’s competency in manual transmission and steep descent driving. The Court held these failures were causally linked to the fatal incident.