SKM has successfully appealed against its convictions on three charges under OHS laws, with the Victorian Supreme Court finding the Magistrate ‘impermissibly reasoned backward’ and misstated the reasonable practicability test.
The appeal relates to the convictions, not the sentences imposed, raising a number of arguments including that the Magistrate erred in relation to the test for reasonable practicability.
Compliance with the obligation created by Section 21 of the Occupational Health and Safety Act 2004 requires employers to be proactive in identifying and responding to risks in a workplace. Employers must provide a safe workplace even for hasty, careless, inattentive or unreasonable employees.
The elements of a section 21 offence is – there was a risk to employee health and safety, the measures identified as necessary would have eliminated or reduced the risk (as the case may be); andit was ‘reasonably practicable’ in the circumstances for the employer to have taken those measures.
Supreme Court Associate Justice Robyn Lansdowne upheld the appeal, stating the following:
‘For these reasons, I agree with the appellant that the Magistrate erred in law in the paragraph to which objection is taken by conflating the objects of the Act as a whole with the duty cast on an employer by s 21. The respondent submits that in this paragraph the Magistrate was merely stating the broader context of the duty imposed by s 21. I do not agree. Admittedly the Magistrate began that paragraph with a phrase suggesting broad context- ‘More broadly however’- but she went on immediately to cast what follows as a duty on SKM as an employer. That was the error…
While I do not consider that the Magistrate erred in the way asserted by SKM in the Questions and Grounds considered above, I do agree with SKM that she erred in relation to the element of reasonable practicability…
…It is plain that s 20(2)(c) requires the court to consider what the employer ‘ought’ to have known about the risk and ways of eliminating or reducing it, not, as the Magistrate states, what it could have known. Similarly, the prosecution is required to establish what the employer should have done, not what it could have done. The time at which these matters must be considered is the time of the alleged contravention, here 24 October 2014…
…I am fortified in this conclusion by the fact that the Magistrate incorrectly stated the test, as applied to the facts, on at least one further occasion in her Reasons. In the final dot point on the last page of her Reasons she states ‘(t)he risk to safety … could reasonably practicably been further reduced through the additional safety measures identified …’. As discussed earlier, there are two possible readings of the paragraph in which this dot point and others appears – either as relating to reasonable practicability, or as a summary of the Magistrate’s conclusions on each element of the offences. On either reading, she repeats the misstatement of the test for reasonable practicability.’
The respondent conceded that by her use of the word ‘could’ instead of ‘should’, the Magistrate misstated the test.
Justice Lansdowne held that it was ‘clear that the Magistrate misstated the test for reasonable practicability by using the word ‘could’ instead of ‘should’ in the paragraph on which SKM relies.’
Justice Lansdowne went on to state the following:
‘The absence of detailed engagement with the evidence as to what SKM should have foreseen and done before the injury, and this contrast of the specific (what happened after the injury) with the general (what SKM could or should have foreseen and done before the injury) supports an inference that the Magistrate impermissibly reasoned backward from what had happened, and how readily it could, in hindsight be guarded against, rather than examining the question on thebasis of what SKM should have foreseen prior to the injury. This in turn led her into the error of applying the wrong test of reasonable practicability.’
Overall in upholding the appeal, the Supreme Court found the Magistrate misstated the test for reasonable practicability by its finding that the employer could have foreseen the risks and implemented appropriate engineering controls accordingly (in the form of tunnel guarding on the aluminium and steel can balers).
The Supreme Court ordered SKM Services Pty Ltd and WorkSafe Victoria to confer on whether the charges should be quashed or remitted for fresh hearing.
2017 SKM, a recycling company was convicted and fined almost $200,000 following an incident in Coolaroo in 2014, in which a worker lost his right hand in an aluminium bailer. The bailer was used to crush and bale aluminium and another for steel. They were found guilty of not providing or mainting plant that was safe and without risk and failing to provide a safe system of work and ordered to pay $45,000 in costs.
The worker had their hand amputated in the machine, a coworker located the hand in the chamber of the bailer. They were guilty due to it being reasonable to have put engineering controls (guarding) in place to prevent the injury.
WorkSafe’s Executive Director of Health and Safety, Marnie Williams stated the following in response to the conviction:
‘Employers must do whatever they can to ensure the safety of their workers…To abrogate their responsibility to others is a clear failure and, as this case has shown, risks severe consequences and penalties…A worker who expected to get home safely at the end of the day has been maimed for life…The best employers work with their employees to understand workplace risks and deal with them without delay.’