Most businesses prosecuted for WHS breaches did not think it would happen to them. They had systems in place, policies, procedures, rules, and assumed it was enough. Until someone was seriously injured and the gaps in their system were exposed.
These are the types of failures that show up in many businesses. Workplace incidents rarely have a single cause. There are usually several contributing factors. This article looks at five, each illustrated by a published prosecution outcome, highlighting one key failure in each case.
Mistake 1: Relying on low-level controls
Under Australian WHS law, businesses must eliminate risks so far as reasonably practicable, then work through substitution, isolation and engineering controls before relying on lower-level controls such as administrative controls (procedures, training, signage) or PPE.
The problem with low-level controls is straightforward. They depend on people doing the right thing every single time. That is not a strong safety foundation.
In April 2023, a team leader at a cured meats warehouse in Mickleham, Victoria, was struck by a reversing forklift, pinned to the ground, and taken to hospital with a serious foot injury.
WorkSafe investigators found no physical barriers, no designated walkways, and no traffic management plan. The work system relied on forklift drivers and pedestrians making eye contact and using ad hoc communication to establish who would give way. WorkSafe Victoria described it as an appalling approach to safety on a well-known risk.
The physical controls that would have prevented this, barriers, marked pedestrian paths, bollards, were all available and reasonably practicable. None were in place. The company, D'Orsogna Limited, was fined $200,000.
Mistake 2: Failing to assess the severity of risk
Some tasks and equipment carry inherent risk regardless of how often they are performed. When that risk is not properly assessed, tasks that require strict controls can be treated as routine, and the level of risk is underestimated.
In June 2023, a newly employed food and beverage attendant at an Adelaide hotel was instructed to refuel a decorative ethanol burner. Another worker had refuelled and lit it thirty minutes earlier. The flame was no longer visible. The attendant refuelled it, and the fuel ignited almost immediately, engulfing him in a flash fire. He suffered burns to more than 80 per cent of his body.
The burner had been in the hotel since 2009. Staff had refuelled it for fourteen years. The manufacturer's instructions stated it must cool for 60 minutes before refuelling and that a spill-proof nozzle must be used. Neither requirement was followed. No safe work procedure existed for the task. No training had been provided. The operator, Winona Way Pty Ltd, was fined $150,000.
SafeWork SA's finding was direct: these horrific injuries would have been prevented if the hotel had simply followed the manufacturer's instructions and provided staff with adequate training and supervision.
Mistake 3: Not factoring in human behaviour
Systems get designed around how work should happen. People work how it actually happens. Those two things are not always the same.
People get tired, distracted and rushed, particularly on familiar tasks. Under pressure, decisions change. That is normal human behaviour, and systems need to be designed with that in mind.
Unguarded machines are a common example. The response is sometimes: nobody would put their hand in there. The hazard was always present. The incident just had not happened yet. Injuries on machinery often do not occur during normal operation. They happen when something goes wrong: a blockage, a jam, a malfunction. That is the moment someone reaches in.
In March 2023, a young grader operator at a Riverland citrus packing operation attempted to clear a blockage in a machine while it was still running. She used a stick first, then reached in to clear the rest. Her sleeve caught in the chain and sprocket, pulling her left arm into the machine. She suffered a degloving injury requiring three surgeries, a skin graft, and an airlift to Adelaide.
The operator, Lochert Bros Pty Ltd, was fined $129,000. SafeWork SA issued 38 improvement notices following the incident, 18 of them related to machine guarding. The court found that a serious injury was readily foreseeable and increasingly likely over time, and called it a fundamental safety failure.
Mistake 4: Waiting for incidents to identify hazards
Businesses that have not had a serious incident often assume their risks are under control. They may have addressed the hazards they know about, but not the ones they do not. Not knowing about a hazard does not reduce the risk. It increases your exposure. The hazards are still there. They just have not been identified yet.
WHS law requires businesses to identify reasonably foreseeable hazards, meaning hazards a reasonable person, with access to available information, would recognise as a genuine risk. Not just hazards that have already caused an incident on site.
The information is available:
- Australian WHS regulators publish prosecution outcomes and safety alerts
- Safe Work Australia publishes injury and fatality data by industry
- Codes of Practice identify known hazards and the controls expected to manage them
- Industry associations circulate incident alerts
- Equipment manufacturers publish operating manuals that identify hazards specific to their plant
- Workers themselves often know exactly where the risks are. Near-miss reporting, pre-start discussions and direct consultation are among the most practical hazard identification tools available
In March 2022, a worker fell 5.2 metres through a skylight while working on the roof of the grandstand at a NSW racecourse, suffering serious injuries. The worker was a casual barman, a level one hospitality worker whose normal role was setting up and cleaning bar areas for race days. He was sent to do roofing work with no working-at-heights training, no site-specific safety induction, no risk assessment, and no supervision by a qualified person.
The court found the club did not have a culture of safety in relation to its own employees. Falls through skylights are a well-documented hazard. Regulator safety alerts, prosecution outcomes and Codes of Practice on working at heights address this risk in every jurisdiction. The information existed. It had never been applied. Illawarra Turf Club Ltd was fined $200,000.
Mistake 5: Failing to maintain and inspect equipment
Many businesses assume their maintenance and inspection obligations mainly apply to heavy industrial plant: forklifts, conveyor belts, pressure vessels. Under WHS law, businesses must make sure plant and equipment provided for use at work is safe and without risks to health and safety so far as reasonably practicable.
Chairs. Hoists. Playground equipment. Adjustable furniture. Any item that workers or the people in their care use and rely on.
In August 2021, a 16-year-old student at a South Australian special school was thrown to the ground when a swing's supporting shackle bolt failed, causing significant head injuries. The investigation found the bolt had worn to 5 per cent of its original cross-section, gradually, over multiple annual inspection periods, and readily identifiable on inspection. Before the incident, the Department had received written advice about the Australian Standard's recommended minimum quarterly inspection of moving parts of playground equipment. No evidence of inspections being conducted was found. The court found the safety system had failed centrally, not just at the local or school level. The Department for Education was fined $225,000.
In October 2021, a 93-year-old resident at a Victorian aged care facility was being moved in a reclining chair when the back detached. She fell backwards, suffered serious injuries, and died one week later. WorkSafe's investigation found no system existed for making sure chairs used to transport residents were regularly assessed for safe functionality, scheduled for preventative maintenance, or tagged accordingly. Tension screws in the chair were found to be loose. No maintenance or inspection records could be produced. Benalla Health was fined $230,000.
WorkSafe's assessment: a simple assessment system for the provider's recliner chairs would have been enough to prevent the incident.
After an incident, investigators will ask for maintenance records, inspection logs and tagging systems. Those documents are the evidence that the duty was met. Without them, demonstrating the obligation was fulfilled becomes significantly harder.
Conclusion
Most businesses do not fail because equipment breaks. They fail because there is no system to identify and act on deterioration over time.
Most of the businesses above had been operating without a serious incident for years before these events. That history did not protect them when the gap in their system was exposed.
If you are not sure whether gaps like these exist in your business, that is exactly where your risk sits.