Having a SWMS doesn’t mean your organisation is complying with WHS laws

Unfortunately no, it does not, just as an employer recently learned the hard way in SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295.

In November 2016, the District Court of New South Wales found Tamex had breached its primary duty of care under section 19(1) of the WHS Act after a worker suffered serious head injuries when the door of a freight cage on a forklift struck him in the head. The worker was standing two metres away from a forklift that was being used to unload a truck he had driven to the depot when he was struck.

The safe work method statement (SWMS) Tamex adopted in 2010 for the loading and unloading of vehicles identified the risk of a ‘fatality or serious personal injury from unsecured freight falling from forklifts of vehicles’. To minimise that risk, the SWMS provided for a pedestrian exclusion zone of ‘up to five metres (sic) clear’.

While the SWMS was kept in the lunch room at the depot and available for workers to read, neither of the workers involved were aware of the existence of the pedestrian exclusion zone, nor were they given any training about it. As such, over the years they had developed unsafe working practices as they would be well within five metres of the forklift when unloading the freight.

In determining whether Tamex ensured the health and safety of the workers so far as was reasonably practicable, Judge Scotting found the wording of the SWMS was ‘apt to mislead the ordinary worker’ because the natural and ordinary meaning of ‘up to five’ metres clear could be construed as permitting pedestrians to be within five metres of the forklift (and not outside five metres of the forklift).

Judge Scotting was ‘satisfied beyond reasonable doubt that the pedestrian zone provided for in the 2010 SWMS was not reasonably practicable because on its natural and ordinary meaning it did not create an exclusion zone that was capable of eliminating or minimising’ the risk.

The matter has been listed for sentencing. Tamex could face a penalty of up to $1.5 million for this category 2 offence.

What does this mean for your organisation?

While the implementation of a SWMS, safe operating procedure (SOP), job safety analysis (JSA) and policies are some practical ways to demonstrate your organisation is discharging its obligations under WHS laws, their existence will offer almost no protection if they have not been drafted carefully, clearly and by someone who is qualified to assess the risks and suitable control measures.

Of course, it is also necessary to ensure your workers are aware of the SWMS, SOPs, JSAs and WHS related policies you have in place.

This case is a timely reminder of the importance of regularly auditing the currency and effectiveness of your organisation’s SWMS, SOPs, JSAs and WHS related policies to ensure they remain compliant with WHS laws, codes of practice and any Australian standards. Where amendments to these documents are made, training should also be delivered to your workforce to ensure they are aware of any changes.


Source: http://www.lexology.com/library/detail.aspx?g=d52b36f0-30fc-41d7-9dda-3de145f97609

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