‘Hard hatting’ fine and adverse publicity order sends strong message about OHS obligations

An agricultural company has been fined $180,000 after a contractor who was not wearing a helmet died in a motorbike accident.

KD&JT Westbrook Pty Ltd, which runs a livestock business in rural New South Wales, was also ordered to publish a notice in multiple newspapers regarding its breach of section 19 of the Work Health and Safety Act 2011 (NSW) (Act).

In late 2014, the contractor was killed while mustering sheep while riding a motorbike.

Unfortunately, this was not the first time that the business had been found guilty of breaching section 19 of the Act. In 2018, the New South Wales District Court found that the business breached the same obligation by failing to provide information, instruction and training to workers regarding helmet use – the very risk which eventuated.

In both instances, the business argued that the contractor was “on a frolic of his own” and that it wasn’t reasonably practicable to enforce the use of helmets because it was often too hot to wear them.

In addition to the substantial penalty, the business was required to publish, in a number of newspapers (both print and online), a public notice which detailed:

  • the contraventions of the business;
  • that despite being uncomfortable to wear, helmets are to be worn while riding motorcycles to minimise the risk arising from work in the agricultural industry;
  • the wide range of helmets available to workers and their features (including ventilation and sun protection); and
  • that the business should have implemented and enforced that all workers wear a compliant helmet while riding a motorcycle.

This negative publicity and considerable expense could have been avoided if the business properly implemented and enforced basic safety rules.

If you require advice in relation to your business’ OHS obligations, assistance conducting safety audits or representation to defend a safety prosecution by the regulator, contact the Employment, Safety and Migration team at Macpherson Kelley.

This article was written by Cinzia Pietrolungo, Lawyer – Employment, Safety and Migration.