Kenoss Contractors fined $1.1 million for workplace death

First case  in Australia where a company has been punished under new nationally harmonised work health safety laws- $1.1 million for safety breaches that led to worker’s death .




A Canberra corporation has been fined $1.1 million for safety breaches that led to worker’s death.

But the fine will likely go unpaid as Kenoss Contractors have gone into liquidation.

Michael Booth, 48, was electrocuted when he delivered a load of material to Kenoss Contractors in March 2012.

In June, Kenoss was guilty in the ACT Industrial Court of serious safety breaches that caused the workplace death.

Munir al-Hasani, former project manager at Kenoss Contractors, was also prosecuted but found not guilty as he did not wield a large enough level of control or influence in the company for him to meet the definition of an “officer”.

Industrial Magistrate Lorraine Walker on Wednesday fined the insolvent company $1.1 million.

The maximum penalty was $1.5 million.

Representatives of the company or its liquidators did not attend court to hear the decision.

In handing down the sentence, Ms Walker found the offence had not been the worst case scenario.

“[But] it is certainly towards the high end,” Ms Walker said.

The Kenoss case is one of the first in Australia where a company has been punished under new nationally-harmonised work health safety laws.

Mr Booth, a sub-contractor, delivered a load of gravel-type material to a fenced off compound – used to store piles of material and piping – near a road resurfacing project run by Kenoss Contractors on Barry Drive in March 2012.

The tip truck he was driving then either connected with or came close to the power lines, creating an electrical arc strong enough to deflate the tyres and leave burn marks on the road.

The Gunning man jumped from the truck, collapsed, and later died.

The court found a number of basic safety breaches led to Mr Booth’s death.

The court there were no safety signs or flags to warn of the live power lines, and access work site was poorly managed, with no locks and it appeared as if it was designed for dumping material.

The lines had not been turned off during the work, and no spotter was used.

Workers had been told not to use the smaller compound, but there was no evidence of any consideration of visitors like Mr Booth, who had been to the site 13 times for his trucking company.

Ms Walker said the risks had been known to Kenoss and simple and affordable methods could have avoided the death.

“Serious injury or death was foreseeable,” she said.

The court also heard of Kenoss’s attempts to obfuscate the authority’s investigations, which included modifying Mr Booth’s attendance records.

Ms Walker said Kenoss had a poor corporate culture – with the safety officer being the son of the general manager and not qualified for the role – and lacked documentation and a systematic approach to safety.

The magistrate acknowledged the hefty financial penalty would have little effect as Kenoss had gone into liquidation.

But Ms Walker said general deterrence meant a strong message needed to be conveyed to employers to address risks of working near overhead power lines.

ACT WorkSafe commissioner Mark McCabe said the bittersweet decision would send “shock waves” through the industry.

“On one hand, this is disappointing [because] there’s a dead worker at the end of this tale, but on the other hand, this is a very strong warning to company leaders right around the country,” Mr McCabe said.

“This is a massive fine, in OHS terms it’s probably the biggest we’ve seen in this country, or pretty close to it.

“Nothing will bring back Michael Booth’s life, but in terms of deterrence this is a very strong message to the industry.”

Mr McCabe acknowledged the fine would likely never be paid due to the collapse of Kenoss, but he said not every company could just fold and disappear.

“Big companies can’t afford to just wind up to avoid a penalty … I don’t think there’ll be too many boardrooms where they’re thinking ‘We don’t have to worry because we’ll just fold the company’,” he said.

“It will send a shock wave right through the industry .., this is going to send a strong message, not just through the ACT, but right around the country.

“I think the whole industry will be sitting up and taking notice of this decision.”

A spokesman for acting Workplace Safety and Industrial Relations minister Simon Corbell said the fine would send a strong message to the industry about the importance of workplace safety, particularly the well-known risks associated with working near overhead power lines.

“It is also worth noting there were simple methods available to manage and even to eliminate the risk that were not utilised,” the spokesman said.

“Two expert reports identified a distinct lack of safety systems in place within the defendant’s operations.

“The circumstances in this case were very serious and led to a tragic result.”
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