Source: OHS Alert (subscription service - 19 September 2025)
Safe operating procedures and traffic management plans are crucial, but these systems will fail if companies pay scant attention to which of their workers hold relevant licences and who is operating heavy equipment, a new court decision confirms.
Judge Andrew Scotting of the NSW District Court was sentencing major bus manufacturer Custom Bus Group Pty Ltd for WHS breaches, and noted that while it had a safe operating procedure for its forklift and a requirement that only employees with appropriate high-risk work (HRW) licences drive it, the reality was that unlicensed workers regularly operated the vehicle.
Judge Scotting added that Custom Bus's line management, at its St Marys, NSW premises, had been aware that unlicensed workers used the forklift, but allowed the practice to continue.
He also noted that there was "no documented 'licence register' accessible".
"Workers, including managers and supervisors, did not know the identity of those who held the HRW licence and/or were authorised to operate the forklift as part of their job function."
Judge Scotting added that the PCBU's safe operating procedure failed to stipulate that keys be removed from the forklift when not in operation to prevent it being used by unlicensed personnel.
Custom Bus pleaded guilty to a category-3 of the NSW Work Health and Safety Act 2011, after the forklift tipped over while being driven by an unlicensed worker when it struck a pile of metal parts in May 2022.
In the sentencing proceedings, Judge Scotting noted the prosecution did not allege the PCBU's breach exposed any worker to a risk of death or serious injury because that would suggest a more serious category-2 breach and offend the De Simoni principle.
(This principle, established by the High Court in 1981, provides that a court cannot take into account a factor that would warrant conviction for a more serious offence when a prosecutor has accepted a plea to a lesser charge. It was considered in another recent NSW WHS case – see related article.)
Custom Bus argued that the De Simoni principle also prevented the Court from assessing the seriousness of the risk posed by its offending, but the Judge disagreed.
"The offence requires the existence of a risk to health and safety of workers. The severity of that risk is relevant to the assessment of the seriousness of the breach of duty," he said.
He said that in determining the appropriate penalty he was required to consider "the risk to the health and safety of workers that existed as a consequence of the offender's failures to prohibit unauthorised use of forklifts and to provide adequate traffic management", which "was a risk that a worker could be seriously injured or killed".
Judge Scotting added that because Custom Bus was a major business employing around 150 workers who could be exposed to risks in the future, there was a need for specific deterrence.
However, he also noted that since the incident Custom Bus had introduced a wide range of improvements to its operating procedures and completely reviewed its safety protocols – an exercise the company estimated cost it more than $800,000.
Judge Scotting found an appropriate fine was $200,000, but reduced this by 15 per cent to $170,000 for the PCBU's plea.
SafeWork NSW v Custom Bus Group Pty Ltd [2025] NSWDC 365 (17 September 2025)