Coles was fined $170,000 in damages after the Industrial Court of New South Wales found they had breached[1] the Occupational Health and Safety Act 2000 (NSW) (OHS Act) by failing to ensure the health, safety and welfare of its employees at work, in particular Gloria Schulz and Nelleka Van Stratum (Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd, 2011).

Ms Schulz and Ms Van Stratum were put at risk of injury when they accessed a suspended plasterboard ceiling to store or retrieve goods and/or materials. The two workers fell a distance of approximately 2.27 metres through the ceiling onto a concrete ramp below.

The duty of an employer to ensure the health, safety and welfare of employees at work extends to[2]:

(a)    Ensuring that any premises controlled by the employer where the employees work are safe and without risks to health;

(b)   Ensure that systems of work and the working environment of the employees are safe and without risks to health; and

(c)    Providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work.

During the hearing it was found that Coles had failed to carry out a risk assessment of the suspended ceilings ability to hold weight and to consider the hazards associated with storing/retrieving goods from the ceiling.

The Occupational Health and Safety Regulations 2001 (NSW) (OHS Regulation) require employers to ‘take reasonable care to identify any foreseeable hazard that may arise from the conduct of the employer’s undertaking and that has the potential to harm the health or safety of any employee of the employer’.[3] The next step in the hazard management process as defined in the OHS Regulation requires the employer to assess the risk of harm to the health and safety of its employees.[4]

Coles had identified the risks involved with persons accessing suspended ceilings and in June 2007 issued an internal document entitled ‘Alert! Accessing Cool-room Roofs and Ceiling Spaces’ which stated employees should not access or enter the void above the suspended ceiling. Coles was unable demonstrate that the hazard alert had been distributed to employees, or provide evidence that employees had been instructed that they could not store/retrieve goods from the suspended ceiling.

Whilst Coles had identified the risk and issued a ‘hazard alert’ to all stores they failed to take reasonable steps to ensure the risks were controlled. Once a risk has been identified and assessed employers are required to eliminate or control those risks.[5] Coles took some administrative action but failed to appropriately control the risk as far as reasonably practicable and provide a safe system of work in relation to the storage/retrieval of goods.

The OHS Regulation provides detail around the ‘control’ of risks.[6] The section states that where it is not possible to eliminate a risk there are five cascading steps that may be taken in descending order. These actions are:

(a)    Substitute the hazard;

(b)   Isolate the hazard;

(c)    Minimise the risk by engineering means;

(d)   Minimising the risk by administrative measures;

(e)    Using personal protective equipment.

Coles did not attempt to ban or prohibit employees from storing/retrieving goods from the suspended ceiling and relied on administrative controls such as a sign stating ‘Don’t store any stock on ceiling, thank you’. The effectiveness of this sign and the working process was brought into question as three baskets of stock were located on the plasterboard ceiling.

A guardrail was present and separated the trafficable area and walkway from the suspended plasterboard ceiling, but did not do enough to stop a worker from accessing the suspended ceiling. Ms Schulz was required to retrieve the three baskets and in order to reach she climbed over the guardrail onto the suspended ceiling. Ms Schulz noted that there were no signs on the railing to indicate not to go over.

Coles failed to restrict employees from accessing the space, they did not provide any physical barriers nor did they provide instruction to the employees verbally or in writing to not access the area.

Coles pled guilty to the charge, the court found the incident to be a serious offence. In sentencing the Judge accepted that Coles cooperated with the WorkCover Authority and provided appropriate assistance, however, he also noted that Coles was not a first offender and had faced some eight prosecutions over the years for breaches of its obligations under the OHS Act. Coles was charged $170,000 for the offence.

In a press release WorkCover General Manager of Work Health and Safety, John Watson, reflected on the importance of the case, ‘This business employs more 23,000 people in 238 stores across NSW, so the safety procedures of this company are relevant to a lot of people,’ Mr Watson said (WorkCover Authority of NSW, 2012).

‘This particular area should never have been allowed to be used to store merchandise and Coles management should have been more vigilant,’ Mr Watson said.

Following the incident Coles reviewed their risk assessment and erected a plywood laminate wall behind the guardrail that prevents any access or storage to the suspended ceiling. The hazard alert issued June 2007 was reissued to all staff, signed and dated as being read by each team member. Mr Watson stated that Coles has addressed the issue in the design of all new Coles stores.

An employer is required to review a risk assessment, and any measures adopted to control the risk whenever:[7]

(a)    There is evidence that the risk assessment is no longer valid: or

(b)   Injury or illness results from exposure to a hazard to which the risk assessment relates

(c)    A significant change is proposed in the place of work or in work practices or procedures to which the risk assessment relates.

Organisations like Coles play a significant role in the community through employment, charity contributions, support of schools, etc. Because of this profile organisations like Coles are often held above others, as they should be. I believe organisations such as Coles need to be leaders in workplace health and safety in order to maintain their image, it is disappointing through this case that Coles were again highlighted for another breach after multiple breaches recorded previously. The facts of this incident were quite simple and ‘could happen to anyone’, the fact that Coles had identified  the risk and failed to implement effective controls is concerning in any workplace, but for an organisation such as Coles with their community standing is unacceptable. I believe this was reflected in the penalty applied by the Court.

Articles/Books/Reports

WorkCover Authority of NSW. (2012, May 27). Coles fined after worker falls from height. Retrieved May 20, 2012, from http://www.workcover.nsw.gov.au/aboutus/newsroom/Pages/Colesfinedafterworkerfallsfromheight.aspx

Case Law

Inspector Doug Rolland v Coles Supermarkets Australia (2011) NSWIRComm 174

Legislation

Occupational Health and Safety Act 2000 (NSW)

Occupational Health and Safety Regulation 2001 (NSW)

 

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