21/12/2009 - Prosecution over Person in Control

Interesting case involving who controls a piece of equipment, or rather who is classed as the Person on Control.  Is it the owner of the equipment, or the employer of a worker using the equipment at the time on the owner’s site?  Turns out the Person in Control could well be the employer of the visiting worker who using the equipment at the time.

Transfield Services (Australia) Pty Ltd and Gavin Scott Wesche (Queensland Industrial Court, C/2009/18, 1 October 2009)

A worker engaged by Transfield Services (Australia) Pty Ltd suffered a serious injury to the face when a handle came off a crank shaft while the worker was attempting to raise a rail drawbridge.  Transfield was charged with a contravention of the general duty provision in section 28 of the Workplace Health and Safety Act 1995 (Qld) imposed upon a person conducting a business or undertaking.

Transfield argued that it should not have been convicted of the offence because Queensland Rail had been the owner of the drawbridge, which meant that “more than one person” had an obligation to the worker. It argued that Workplace Health and Safety Queensland had to prove beyond reasonable doubt that the employer had “control” of the workplace.

Hall P pointed out that section 15B of the Workplace Health and Safety Act 1995 stated that the “person in control” of the relevant workplace area will be considered the owner, unless “there is in place a lease, contract or other arrangement that provides … for another person to have effective and sustained control of the relevant workplace area”. In such a case, “the other person, and not the owner, is the person in control”. Hall P found that the fact that Transfield’s control of the drawbridge “was temporary and might have been terminated” was irrelevant, because the charge the obligation in section 28 related to the “obligations of those who conduct businesses and undertakings”. Hall P held that a person conducting an undertaking has “control” of a worksite - and not the worksite’s owner - even if the undertaking is temporary. Hall P dismissed the appeal.