Andrew Douglas: So let’s swing onto our main topic. And we did this because we’ve had a number of our clients who have had some pretty unfortunate incidents in the last year, when I look at the 20 or so matters we’ve dealt with where there’s been serious injury with death that have come to the business.

These are the things that you and I see every day, and they mostly involve motorised plant or fall from heights. Even the chain incident where a chain fell down, it fell down off for crane for the industrial manslaughter cases.

But if we talk about where liability falls for industrial manslaughter now, what the courts and the regulators are saying clearly is there are two or three known major risks in any building, in any place of work, and they are, where there is motorised equipment working, where that is a truck, a forklift, a crane, where that work site is a building or open space. Everyone knows that something with a motor can’t stop, and if it hits you, it will hurt you, okay? Now the regulators are saying, “We’re not going to put up with it anymore. We’ve been charging primary duties all over the place for years and years.”

And yet the rate of incidents around forklifts are growing to the extent that there are a number of aircraft manufacturers and people now who have created production lines that don’t have forklifts involved at all to try and stop the use of motorised plant.

But the other one which has taken off is falling from heights. We’ve seen there’s a total of 13 industrial manslaughter charges, I think, throughout the states and territories. I just want you to hear that number again. But anyway, it’s a lot.

You know, and we’ve probably had 50 or 60 reckless endangerment five years ago. A, there wasn’t industrial manslaughter and, B, there was only one charge of reckless endangerment five years ago, and now look at what we’ve got. We’ve got somebody serving 18 months jail with a five-year sentence. The world has changed. So if you have a void or a place someone is working which is above two metres off the ground, you know you’ve got a duty of care, you know clearly what that duty is. It’s actually defined in the regulations as to what it is.

You can’t escape the fact of that duty. And anything that was so neglectful to allow someone to fall, is seen by both regulators and courts as such a serious breach of duty. Because when you see someone standing up and they could fall down, how could you let it happen?

Kim McLagan: Oh, I hate it when I see it, and you see it all the time.

Andrew Douglas: Well, we see it domestically, don’t we? Commonly as I’ll drive on a Saturday or Sunday, I’ll see people my age, not young, climbing up ladders unsupported onto roofs without any method of support.

But the fact is, regulators won’t tolerate it anymore. So nearly all, but one, of the charges laid related to motorised plant in some or falling from heights.

What we are going to see change, and it’s starting to come through, so we’ve started to see with the Victorian Building Authority, a reckless endangerment charge around managing performance poorly and restructure.

We are going to see an egregious breach of a psychological hazard, and Victoria, particularly, will prosecute it. And I think, to be candid with you, so will Queensland, ’cause Queensland’s been quite an aggressive prosecutor as well, and has a much more restrictive code and set of regulations there.

But if we see someone die as a result of sexual harassment or bullying, I guarantee you in the next year we will see an industrial workplace manslaughter charged laid, because the death will most likely not be at work. And that’s exactly what industrial manslaughter is designed to capture is where the injury arises to death outside of the workplace, because of the psychological hazard in the workplace.

So, look, we thought we’d just spend a bit of time, because it’s worthwhile to say, “Well, if I had $100 to spend on safety, where would I spend it now?” Motorised plant, fall from heights.

Kim McLagan: Yeah.

Andrew Douglas: I would be meticulous about it. Absolutely meticulous. If I had an extra $100 about where I was going to spend in the future, it would be about getting rid of the really egregiously bad psychological hazards, ’cause they still reflect 80% of compensation claims, sexual harassment and bullying.

Kim McLagan: Yeah.

Andrew Douglas: Now if you do those things, you’re not going to jail. Just those things, you’re not going to go to jail. So I hope that helps a little bit.

Kim McLagan: Well, tell you what, it is so worth the investment, and they’re relatively simple measures. There are so many consultants. If anyone needs a safety consultant, we can certainly put you in touch with people just to assess your operations and make it safer. It’s not hard.

Andrew Douglas: Yeah, and same with, you know, with HR or safety who talk to us at the Found Group, and they’ll come and do the high-level audit, which says, look, “These are your really high-order risks.” It’s not going to cost you $50,000. It doesn’t take long to identify high-order risks. And, as you say, creating a proper exclusion area is not hard.

Kim McLagan: No.

Andrew Douglas: Preventing people from falling from heights, it’s not hard. But it does require supervision in both occasions, ’cause that’s the heart of it. Without supervision, people breach the rules which create the fatalities. Well, let’s go into our problem, which is, again, longer than I meant it to-

Kim McLagan: It’s a long one.

Andrew Douglas: I didn’t mean it to be, I thought it was short. Okay, off you go, Kim. You read the first two paragraphs, then it’s off to me.

Kim McLagan: All right, “Donald.”

Andrew Douglas: Yeah, Donald.

Kim McLagan: Donald Trump.

Donald was the managing director, and the sole owner of Tampede, a processor of horse manure for domestic gardens. Tampede had a plant that liquified the manure, then processed it into hardened balls for ease of consumption in the domestic gardening market.

Consumption. Just one I bet you could use. Anyway, sorry,

The plant was situated in Camberwell and had warehousing facilities adjacent. When the hardened balls were produced, they were packed into 10 kilo and 20 kilo bags, then racked in the warehouse to meet orders.

WorkSafe had attended the site three times in 2023, each time issuing improvement notices around traffic management, particularly the failure to prevent pedestrian access into what was a busy warehouse, the absence of a traffic management system, and subsequently the failure to follow the plan.

On each occasion WorkSafe attended, Donald shot out the back door and allowed Buzz Cauldren, the operations manager, to take the wrap. But Buzz was pretty grounded and always told WorkSafe the truth. Following the third occasion, when Improvement and Prohibition Notices were issued, they stopped the use of the warehouse until mechanical barriers were introduced.

Andrew Douglas: I’ll take over.

This was to lock out employees due to the repeated failure of all, including Donald, to follow the plan, and CCTV evidence was damning. WorkSafe required physical barriers because of the culture of noncompliance. Donald gave Buzz a final warning for his part in providing evidence to WorkSafe, which led to the notices.

Two weeks later, the maintenance crew disabled the lockout mechanism to permit stocktaking to occur on 30 June to settle the yearly accounts. Which means people could actually get into the area.

The direction to disable the lockout came from Donald, who issued a brief message saying, ‘Everyone must respect the 3-meter exclusion rule whilst the lockout was down.’ Buzz knew that disabling the lockouts was dangerous as the forklift drivers were proud of the speed they picked and loaded (the forklifts had no speed governor).

You know, on most forklifts, there is a governor that prevents you going over 10 kilometres an hour.

He complained to Donald who made it clear he didn’t want Buzz causing trouble. ‘This was business, just make it work.’

The forklifts and their drivers were owned and employed by Fastpac, a commercial contractor.

The coordination plan between Fastpac and Tampede had not been updated since 2014, and gave Fastpac exclusive management control of the warehouse. Since that time, there had always been staff members of Tampede in the warehouse assisting with truck loading and unloading.

The supervisor of the forklift crew was called Pru. She was an employee of Fastpac. She was aware of the disabling of the lockouts and advised her employees that people will be entering their space and make sure the 3-meter rule is adhered to. Fastpac had no policy of their own, relying on Tampede’s rules and coordination plan. Pru did not consult with Tampede, nor did Tampede seek to consult. It simply advised Fastpac 12 hours before the disabling of the lockouts.

Mike Spent, second in charge under Donald, entered the warehouse at 11:00 PM to see how the stocktake was doing. He entered by the side door where a bank of fluorescent lights connected to the same circuit as the lockout devices had accidentally been shut down. He emerged through the darkness and was struck by a forklift driving forward at well over 25 kilometres an hour, the maximum speed under Tampede policies and coordination plan was 10 kilometres, with an elevated load, two pallets high, carrying 20 kilogramme bags of manure balls.

This was a direct breach of the golden rule about never driving forward with an elevated load except in the immediate vicinity of the truck when loading.

Mike suffered major degloving injuries stripping skin from arms and legs. He died shortly after of uncontrolled blood loss.

All right, so question one.

Donald caused an investigation to be undertaken. As a result of the investigation carried out by his son-in-law, who owned an OHS business nicknamed Jarhead, could be Jared, Buzz was summarily dismissed. The finding by Jarhead is Buzz permitted Fastpac to drive quickly and failed to undertake a risk assessment of the environment without lockouts in place.

Assuming Buzz didn’t undertake the risk assessment, was there a valid reason for termination?

All right, let’s just step back a little bit. Buzz has raised his complaints. He said it’s not safe. Yes, he should’ve undertaken a risk assessment. There was no consultation between him and Pru, nor Pru and them. And when there is a change in process in a coordinated space, there must be re-consultation and a re-agitation of what is the risk process.

So, yes, Buzz is in trouble, but the courts would not be too interested in Buzz.

Kim McLagan: No.

Andrew Douglas: They’d be much more interested in Pru, the contractor, Donald and Tampede. So, yes, a risk assessment should have been undertaken, but it is the smallest vice out of all in this whole process.

The contractor management piece is appalling, and the fact that you give someone exclusive control sounds good under a contract. But when you don’t have a proper supervisor, a real safety supervisor, the contractor is you.

So there’s been no carve out of liabilities. So the liability sits with Tampede. There is direct responsibility for Pru who’s providing supervision, and should’ve stopped work at the time lights weren’t available when people could come in. So there’s a whole lot of problems here.

Kim McLagan: Yeah.

Andrew Douglas: Buzz is in a little bit of trouble. He might cop a Section 25 breach.

Kim McLagan: Yeah.

Andrew Douglas: Okay? But he’s not going to be the big bearer of bad news.

Would Buzz have any defence and cause of action arising out of his dismissal?

Well, let’s just go through the ones he’s got, ’cause they’re beauties. For a start, when he got the first warning for raising a safety issue with WorkSafe, it’s a clear breach of discrimination provisions under the safety law in all jurisdictions. That’s a significant penalty. His termination now under these reasons, again, he raised the complaint, he has both general protections and discrimination claims. He has a good cause of action, okay?

Let’s go to the second question.

Kim McLagan: Can I read something?

Andrew Douglas: Yeah, you can read some of it.

Kim McLagan: As the warehouse was under the exclusive management and control of Fastpac, could Tampede and its employees and officers be charged? If so, what for? And does the contractor relationship carve out liability for Tampede?

Andrew Douglas: So the answer is, let’s go to the second question first.

Kim McLagan: Okay.

Andrew Douglas: To carve it out, you’ve got to demonstrate that the organisation had policies and procedures that fit with its area of expertise, they didn’t. So they’re gone, so there is no carve out.

Secondly, they had to demonstrate safety competence. They didn’t. So Tampede is liable, but it doesn’t change the liability that also sits with a contractor on the site. But Tampede can’t escape, that’s the thing. You’re going to have full liability for two parties, it’s not a zero-sum game.

So if we look at the first thing is, what can they be charged with? I think Donald’s running down the path towards certainly a reckless endangerment charge. And the business, in this circumstance, could face an industrial workplace manslaughter charge, because of the duties that exist.

Donald’s far enough away, he may not be drawn in, but they’d certainly charge him with industrial manslaughter, or Victoria workplace manslaughter, to get the leverage to at least get a charge that sticks in a plea of guilty for reckless endangerment.

As I said, I don’t think Buzz is in a lot of trouble. Okay.

Could Fastpac and Pru be charged with any OHS offences, and if so, what?

Same thing, I think Fastpac is staring down the barrel at a workplace manslaughter charge.

Kim McLagan: Yeah.

Andrew Douglas: Okay? Pru, not enough skills, not enough insight, she’d get reckless endangerment.

Kim McLagan: Okay.

Andrew Douglas: Still change, you know, off to jail for that, not good is it?

What charges do you think that Donald, Buzz, and Tampede will face, if any?

Well, we’ve talked about those.

Kim McLagan: Yeah.

Andrew Douglas: Okay, so I think if I was the regulator, I don’t like Donald in this one, but his behaviour would come out and be shown for what it is. The fact that he did issue a direction around the exclusion will probably drop it down to reckless endangerment.

But his knowledge of the failings in the past, his personal knowledge, may be the bit that tips it back to workplace manslaughter.

Kim McLagan: I think it’s worth making the point that we get inquiries from owners of businesses, but who contract out, and they say, “Well, we’ve got contractors, so they’re responsible for safety, we’re not.” And that’s a major-

Andrew Douglas: Yeah, that’s right. The principle, the employer is always liable until they can demonstrate those elements that I’ve talked about, which is safety competence.

Kim McLagan: Yeah.

Andrew Douglas: Safety supervision, and a system of safety, which is regularly audited through a supervision of systems to demonstrate you’ve carved out that liability. In other words, you’ve got someone else who will do everything that’s reasonably practicable.

We have a knowledge that’s not the case, you’re on liability, and your obligation is to supervise the job, come back, not just supervise the systems. Well, I reckon that pulls us up.

You know, I don’t think there’s another question. Is there another question there? No, it’s just us.

Kim McLagan: That’s it? Are we done?

Andrew Douglas: So, look, can you give us a bit of a thumbs up? Bit of fun this week in some ways, but I hope what we’ve done is given you an insight as to the big safety risks coming towards you, but currently what are the biggest safety risks, and to understand people are being charged right now with industrial manslaughter.

It’s not like it’s going to happen, it’s happened, and we’ve already got reckless endangerment charges going towards psychological hazards, and that is where it’s going to go in the future. So great to have you along again.

Kim McLagan: Good to see you.

Andrew Douglas: Yeah. Nina! Have a lovely wedding and everything else, Nina. See you later.

Kim McLagan: See ya.

Andrew Douglas: And see you same time next week. Bye-bye.

Kim McLagan: Bye.