Gerhard Zylowski (Executive Officer of 'Bauer Foundations Australia Pty Ltd')

Incident description:

On 10 August 2009 a 31 year old worker was killed when a 10.5 tonne piling rig counterweight fell on him.

Bauer Foundations Australia Pty Ltd (Bauer) employed the deceased as a storekeeper at its Pinkenba yard.

Bauer entered a plea of guilty and was sentenced on 22 April 2010 in the Brisbane Industrial Magistrates Court.

The defendant, Mr Gerhard Zylowski, was the general manager of Bauer and reported to their board of directors. The court found that Mr Zylowski held obligations under s.167 of the Workplace Health and Safety Act 1995 (the Act) being an executive officer of a company conducting a business or undertaking.

The incident occurred when the deceased and another employee were removing the counterweights from a BG28 piling rig to make it lighter for transportation. There were three weights on the rear of the rig which were held in position by a horizontal long bolt screwed into the rear structure of the rig. Each weight was also secured to the support frame by two bolts.

The second employee unscrewed the long bolt then left the rig to locate the assist crane, which would lift off the weights in turn. At this time the deceased loosened off the two bolts securing the outermost weight. This caused the weight to fall backwards off the support frame due to over-centre weight distribution of the counterweight. The remaining bolts could not hold the weight in place and they failed under the load of the falling weight. The other employee heard a 'crack' and turned around to see that the rear counterweight had fallen on the deceased.

A similar incident occurred with a related company, Bauer Malaysia, in Malaysia on 13 May 2009 when a counterweight was being removed from another BG28 piling rig. No one was injured.

On 14 May 2009, the workshop manager of Bauer Malaysia sent a detailed email alert to the workshop manager of the parent company in Germany, which was forwarded to the Pinkenba yard manager, and copied to the defendant. The alert was sent to all other Bauer related companies internationally.

On 5 June 2009, the workshop manager of the parent company sent an email providing an amended procedure for assembly and disassembly of counterweights to the workshop managers of related companies, including the Pinkenba yard manager. This email was not sent to the defendant.

No immediate action was taken by the Pinkenba yard manager to bring Bauer's control measures in line with the instructions contained in the email of 5 June 2009, or in accordance with the 'death hazard' identified in the email of 14 May 2009.

The investigation findings revealed the defendant failed to exercise reasonable diligence to ensure the company complied with section 24 of the Act. He failed to exercise his managerial authority and responsibility to ensure:

• relevant Bauer staff carried out a competent risk assessment on possible hazards arising out of the de-rigging task on the piling rig, from the date it was commissioned until the incident date
• Bauer decided on appropriate control measures to manage the relevant hazards and prevent or minimise the level of risk in accordance with section 27A(2) of the Act and the Risk Management Code of Practice 2007
• an adequate system was in place to ensure the contents of the high priority email dated 14 May 2009 was brought to his attention by the Pinkenba yard manager
• Bauer's safety management system was followed in relation to the proper management of risk presented by the hazard
• staff at the yard were adequately supervised at all times, and trained and instructed to prevent or minimise the level of the risks presented by the hazards
• position descriptions were developed for staff to clarify the roles and responsibilities of staff members.

Court result:

The defendant pleaded guilty in the Brisbane Industrial Magistrates Court on 13 December 2011 to breaching s.24(1)(b) of the Workplace Health and Safety Act 1995, having failed to meet his workplace health and safety obligation imposed under s.167. He was found guilty of the offence, and no conviction was recorded.

Industrial Magistrate Ms Wendy Cull ordered the defendant to pay a penalty of $40 000 as well as investigation and professional costs totalling $33 625.

In reaching a decision, the industrial magistrate acknowledged the defendant failed, by acts of omission, to manage the hazards of an inadequately secured counterweight at height on plant, and the system of work for the removal of a counterweight at height on plant.

In deciding on the penalty imposed, Industrial Magistrate Cull took into account the defendant had not been prosecuted previously for any workplace health and safety breach, cooperated with the investigation, was of otherwise good character, showed remorse and assisted the family of the deceased after the incident as best he could, and had entered a timely plea of guilty.

Considerations for prevention:

(Commentary under this heading is not part of the Court's decision.)

When deciding on and implementing control measures associated with the risk of falling objects, moving objects or working at heights, obligation holders should consider:

• engineering control measures, such as a locking device to secure the counterweights in place without the need for people to be in the potential fall zone
• safe work procedures
• worker qualification and experience.

Visit the Workplace Health and Safety Queensland website for more information on:

• building and construction
• health and safety information for construction
• managing risk
• employer training options
• training staff 
• counterweights on mobile plant
• Plant Code of Practice 2005
• How to Manage Work Health and Safety Risks Code of Practice 2011
• Work Health and Safety Act 2011.