In order to reduce their liability, it is common for principal contractors to have systems of work which they then push onto their sub-contractors to manage. It is assumed that is enough to avoid responsibility but that is not the case at all. As the case of SafeWork NSW v DIC Australia Pty Limited [2021] NSWDC 143 (30 April 2021) re-established, principals must have mechanisms in place to enforce their safety systems and make sure that sub-contractors are actually applying and complying with the established controls. Failure to do so exposes workers to high risks and principals to even higher fines!

DIC Australia Pty Ltd (DIC) manufactured ink products. They had engaged Buddco Pty Ltd (Buddco) to manage and supervise all maintenance work at the ink plant. During one of the cleaning cycles, the agitator activated inside the tank and the cleaning subcontractor’s leg became trapped between the side of the tank and the anchor blade. He suffered fatal injuries. Other workers from Buddco and DIC also attempted to enter the tank to assist and suffered leg injuries.

To prevent such incidents, DIC had established a base safety system which included confined space entry permits and job safety analysis forms which were required to be completed before work was undertaken. However the documents failed to provide sufficient information on the electrical workers who were not aware there was no external isolator switch or that the plant should have been isolated by an electrician.

DIC was found guilty of breaching sections 32 and 19 of the Work Health and Safety Act 2011 (NSW). In particular, the Court noted DIC could have prevented the incident by:

• installing engineering controls so workers could isolate the tank themselves;
• Alert system for workers if moving parts were not isolated;
• Deactivate plant if there was emergency;
• enforced requirements to complete the JSA and permits properly;
• use a lock-out-tag-out system; and
• obtain approval from Buddco that it was safe before commencing work.

A costly lesson for the company who received a fine of $450,000 and $45,000 in costs.

Key Lessons

Employers must

• have thorough safety systems which require risk assessments for dangerous work
• enforce safety systems. It is not enough to simply explain to contractors they must double check the JSA and that permits are completed properly.
• ensure workers and contractors are provided with enough information around risks, risk controls and mitigation strategies otherwise they risk a primary duty breach

Written by Nina Hoang

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