1 The decision to issue an improvement notice, made 13 December 2005 and affirmed on internal review on 5 January 2006, is set aside.

Mr J Pizer of counsel, instructed by Work Safe Victoria

1 In the past twenty years, 30 pedestrians have died at Victorian workplaces after collisions with forklift trucks or their loads[1].

2 Mr Steve Peluso was one such pedestrian. He died on 13 April 2005 at the applicant's cold storage facility after being struck by a falling load from a forklift which had stopped suddenly to avoid him.

3 After his death, the applicant, A B Oxford Cold Storage Co Pty Ltd ("Oxford") went to considerable lengths to identify a safety system that would minimise risks to pedestrians at its facility. It sent its officers to view other pedestrian management systems at sites in Victoria, interstate and overseas. It engaged a safety consultant, Mr John Hickey, to advise the company. It devised and trialled six different pedestrian safety systems at the facility, including one recommended by Mr Hickey, which involved the positioning of bollards to alert, control and direct pedestrian traffic ("the bollard system")[2]. Oxford also polled its employees about the systems trialled.

4 In late November 2005, Mr Hickey recommended implementation of the bollard system. In early December 2005, Oxford's management decided to implement the bollard system in Freezer 11B at its facility.

5 Between April and December 2005, Oxford kept the Victorian Workcover Authority ("VWA") informed of the measures being considered and trialled, as well as of its decision to implement the bollard system.

6 On 13 December 2005, however, an inspector from VWA issued the company with an improvement notice alleging a contravention of sections 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 ("the Act"). On 5 January 2006, the decision was affirmed on internal review by the VWA's Senior Internal Review Officer, Mr Peter Murphy. He concluded that while Oxford's bollard system was an improvement to the existing system in those parts of the freezers concerned, it was "a lower level control than that offered by means such as a physical barrier (with or without electronic warnings)" which he considered "would reduce to a greater extent the risk to pedestrians using the walkways along the loading dock wall".

7 On 13 February 2006, the Tribunal stayed the operation of the improvement notice pending the determination of the application for review.

8 Oxford seeks to set aside the improvement notice on the basis that the system implemented by it reduces the risks to the safety of pedestrians so far as is reasonably practicable. If the improvement notice is set aside, it intends to implement the bollard system in Freezer 11A. Oxford says that VWA acted unfairly in failing to give advice or direction to Oxford after April 2005, and particularly after learning of Mr Hickey's recommendation concerning the bollard system, about the steps which it believed Oxford could or should take to further reduce risks to safety, prior to, or as an alternative to, the issue of an improvement notice.

9 VWA says that the decision to issue the improvement notice was appropriate and should be affirmed, on the basis that the system selected by Oxford does not reduce the risks to pedestrians so far as is reasonably practicable.

10 Oxford operates a cold storage facility in Laverton North ("the Site") for a number of manufacturers of frozen goods. The Site comprises a floor area about 10 times larger than the MCG, across 20 sheds or chambers. The Site stores frozen foods for manufacturers until such goods are required to be sent out to retailers. Approximately 400 trucks are loaded and unloaded at loading docks in the sheds at the Site each day, by 144 forklifts carrying out more than 12,000 forklift movements. There are about 330 personnel on Site, including drivers and office staff employed by the manufacturers[3].

11 "Freezers 11A and 11B" refer to the largest sheds on the Site. They share the same roof and front wall, but are separated by an internal dividing wall. Each of them houses 22 loading docks and around 112 personnel, including approximately 50 order-pickers who move on foot around the sheds making up pallets of goods for customers, and 12 or so tally workers who check the pallets prior to loading.

12 The forklifts unload the trucks at the loading docks and take them to a short-term holding area where the goods are computer scanned by tally clerks. Later, the forklifts move the pallets of goods across a carriageway in the shed to the huge freezers at the rear of the sheds. When goods are ordered by the manufacturers, the same sequence occurs, but in reverse order: the goods are retrieved by forklifts from the freezers, transported across the carriageway to a short-term holding area for scanning and checking, and later conveyed by forklifts to the trucks in the loading bays.

13 Trucks park in reverse in front of loading docks which are located at approximately 2.9 metre intervals along the front wall of the sheds. The loading docks consist of doors which open vertically, allowing the truck to park up against the front outside wall of the shed. A light shines into the truck from the upper corner of the open doorway. A protective hood extends from the shed over the rear of the truck to maintain the required level of refrigeration during loading and unloading. Forklifts then travel directly from the floor of the shed into the trucks, and back into the sheds, during loading and unloading.

14 Along the inside of the front wall of each shed there is also a pedestrian walkway, which is separated from the forklift movement area of the shed by guard railing ("Armco railing") which extends along 85% of the length of the building. The walkway is the main access to the dock office, staff amenities (lunch-room and toilets), and to exits from the sheds. On the other side of the Armco railing, there may be up to two rows of pallets of goods waiting to be logged and checked by tally clerks before being further moved by forklifts either into the deep freezers, or to the loading docks.

15 There is a gap in the Armco railing at regular 2.9 metre intervals along the walkway, allowing forklifts to pass from the carriageway of the shed, directly into the trucks being loaded or unloaded. The path across the gap, which is used by pedestrians and forklifts, is a pedestrian and forklift intersection ('the intersection"). There are 22 such intersections in each of Freezers 11A and 11B.

16 Oxford's Safety Procedures require forklift drivers to give way to pedestrians at all time and to sound their horn when approaching loading dock doorways. Pedestrians are required to approach intersections with caution when loading doors are open and forklifts are loading or unloading trucks or containers.

17 The bollard system proposed by Oxford involves the placement of a high visibility red bollard with two yellow bollards on either side of the forklift entrance with appropriate signage noting "caution pedestrians" and "caution forklifts"[4].

18 The relevant portions of the improvement notice issued by Inspector Johnson on 13 December 2005[5], are as follows:

I reasonably believe that A B OXFORD COLD STORAGE CO P/L is in contravention of Section 21(1) & 21(2)(a) of the Occupational Health and Safety Act 2004.

As a result of a fatality which occurred at this workplace in April 2005, a number of different pedestrian safety systems have been installed and trialled at the intersection of the pedestrian walkway and loading dock doors in Freezers 11A and 11B. These systems have been modified, trialled and the effectiveness of each discussed with employees.

I was informed that management have selected one of the pedestrian safety systems and intend to utilise it at these intersections throughout the workplace.

The selected system consists of a sticker bearing the words 'Caution - Forklift' adhered to a yellow bollard either side of the loading dock door and a plastic high-visibility bollard placed centrally in the pedestrian walkway prior to the intersection. This bollard is intended to impede pedestrians when approaching the intersection.

In my opinion, this pedestrian safety system does not require the pedestrian to come to a stop before entering the intersection, nor does it require the pedestrian to change direction sufficiently in order to observe any approaching powered mobile plant.

In my opinion, this pedestrian safety system does not eliminate, or reduce so far as is reasonably practicable, the risk of a collision between a pedestrian and powered mobile plant at these intersections.

A B OXFORD COLD STORAGE CO P/L must provide and maintain a pedestrian safety system at the intersection of the pedestrian walkway and loading dock doors in Freezers 11A and 11B that is, so far as is reasonably practicable, safe and without risks to health.

Consideration should be given to the selection of higher order controls, available guidance material and industry knowledge of this issue.

Guidance may be obtained from the WorkSafe Victoria publication 'Forklift Safety - Reducing the Risk - Pedestrian Safety'.

This contravention must be remedied by 01/03/2006.

19 Section 2 of the Act[6] sets out the objects of the Act, which include the elimination, at the source, of risks to the safety of employees and other persons at work.

20 Section 2(2) of the Act records Parliament's intention that in the administration of the Act regard should be had to the five principles of health and safety protection set out in section 4 of the Act. The second of these principles is in the following terms:

(2)

Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

21 Section 12 of the Act provides that the VWA may make guidelines about the way in which, in its opinion, a provision of the Act would apply to a class of persons or to a set of circumstances; or a discretion under a provision of the Act would be exercised[7].

22 Section 16 of the Act provides that the VWA may accept undertakings (by written notice) by a person in connection with a matter relating to a contravention or alleged contravention by that person of the Act. The VWA may apply to the Magistrates' Court to enforce such undertakings[8].

23 Section 18 empowers the VWA, or an inspector, to give advice to a person who has a duty or obligation under the Act about complying with that duty or obligation[9]. The section also provides that the giving of such advice by the VWA (or an inspector) does not give rise to: any liability of the VWA; any duty or obligation upon the person given the advice; nor any defence that would not otherwise be available to that person.

24 Section 21 of the Act imposes the principal duty on employers in relation to ensuring safety in the workplace. It relevantly provides as follows:

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

(2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following -

(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health. ...

25 Section 20 of the Act provides as follows:

(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person -

(a) to eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety -

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk.

26 Section 111 of the Act provides that an inspector may issue an improvement notice to a person he or she reasonably believes is contravening a provision of the Act or has done so in circumstances that make it likely that the contravention will occur or be repeated.

27 The improvement notice must state the basis for the inspector's belief, the provision of the Act which has been or is likely to be contravened, the date by which the contravention is to be remedied, the penalty for contravening the notice and the means by which review of the issue of the notice may be sought. The improvement notice may also include directions concerning the measures to be taken to remedy the contravention or likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates. Failure to comply with an improvement notice is an indictable offence against the Act which carries a maximum penalty, in the case of a body corporate, of $262,025.

28 In its terms, therefore, section 111 does not require the issue of an improvement notice even where the inspector believes a contravention has occurred or is likely to occur or be repeated. The power is discretionary, and the use of "may" rather than "shall" must be taken to be deliberate. The Act does not specify how this discretion is to be exercised, nor have any guidelines been issued concerning this section of the Act.

29 The Act therefore provides a number of ways in which the VWA may secure compliance with section 21 of the Act. It may give guidance or advice to the employer about the reasonably practicable measures which could be taken to further reduce risks to safety[10]. It may accept undertakings from the employer that certain measures will be taken, and then enforce those undertakings. It may issue an improvement notice and in that notice give advice or directions as to how the contravention may be remedied.

30 A decision to issue an improvement notice under section 111(1) of the Act is a "reviewable decision" under section 127 of the Act[11] . The person to whom the improvement notice was issued may apply to the VWA for internal review of that decision[12]. That person may then apply to the Tribunal for review of the decision made on internal review[13].

31 Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 provides that in exercising its review jurisdiction in respect of a decision, the Tribunal has all the powers of the decision-maker, and may affirm, vary or set aside the decision under review.

32 Accordingly, the Tribunal's role is to determine afresh, on all the material before it, whether Oxford's proposed bollard system for pedestrian safety at the intersections in Freezers 11A and 11B at the Site reduces the risks to pedestrian safety so far as is reasonably practicable[14], and, if it does not, whether an improvement notice should be issued.

Has there been a contravention of section 21 of the Act?

33 When read together with section 20, section 21 of the Act requires Oxford either to eliminate risks to health and safety so far as is reasonably practicable but, if that is not reasonably practicable, to reduce those risks so far as is reasonably practicable.

34 Elimination of risk in the context of the Site would require removing pedestrians altogether from the zone used by forklifts when loading and unloading trucks in the loading docks at the sheds. Given the nature of the activities undertaken in Freezers 11A and 11B, such a measure would appear on its face to be completely impracticable, and has not been proposed by either party.

35 In determining whether the proposed bollard system reduces the risk of collision between pedestrians and forklifts so far as is reasonably practicable, consideration must be given to the five matters set out in section 20(2) of the Act outlined above.

36 There was no dispute between the parties as to three of these matters: likelihood of risk, degree of harm if the risk eventuated, and Oxford's knowledge of various ways of reducing hazard or risk. It is clear that there is a significant risk of collision between pedestrians and forklifts (or their loads) in Freezers 11A and 11B at the Site, and that a collision may cause death or serious injury. Oxford is aware of the available literature[15] which addresses the steps that can be taken to reduce the risks to pedestrians. Oxford did not raise the issue of cost in relation to the introduction of any of the measures canvassed by the parties.

37 The dispute between the parties centres on the suitability of the various available risk-reduction measures. VWA relies on the evidence of its expert, Mr Corben, to the effect that the introduction of a number of additional measures would further reduce the risk of pedestrian and forklift collisions at the Site.

38 Oxford says that it is not necessary or desirable to bring pedestrians to a stop, and, further, that the bollard system does sufficiently orient the pedestrian towards any oncoming forklifts. It says that if the Tribunal accepts this evidence, it should set aside the improvement notice, as those are the only specific matters raised in the notice as the basis upon which it was issued. It also says that in any event the measures proposed by Mr Corben are not reasonably practicable at Oxford's Site.

39 After Oxford's counsel opened his case, the hearing was adjourned to enable me, in the company of counsel and their clients and experts, to view the Site, as well as another cold storage facility close by ("the Bulla site") where a gate system has been implemented to manage pedestrian safety at pedestrian-forklift intersections.

40 The parties tendered a joint Tribunal Book containing most of the material upon which they relied. In addition, each of the parties tendered a small number of additional documents.

41 I heard viva-voce evidence from three witnesses: Mr Gabor Fleiszig, who is a Director of Oxford, and Mr John Hickey, Occupational Health and Safety consultant, on behalf of Oxford, and Mr Bruce Corben, a Senior Research Fellow at Monash University Accident Research Centre, on behalf of the VWA.

42 Oxford says that the evidence does not support the conclusion reached by Mr Murphy (after the internal review) that a physical barrier or gate system for pedestrian safety should be installed in Freezers 11A and 11B on the Site. It says that VWA's guidance materials acknowledge that it may not be possible in every case to introduce a gate system for pedestrian safety[16] and that the Tribunal should accept the evidence of Mr Fleiszig and Mr Hickey that for technical and operational reasons[17], it is not reasonably practicable for Oxford to introduce a gate system similar to the one operating at the Bulla site[18].

43 Oxford also says that the Tribunal should prefer the evidence of Mr Hickey to that of Mr Corben because the latter made his proposal without detailed knowledge of conditions of the Site and after spending only 30 minutes there. Oxford relies on Mr Hickey's evidence to the effect that the proposed bollard system reduces risks to pedestrian safety so far as is reasonably practicable; that it is neither necessary nor desirable to bring pedestrians to a complete stop at the intersections, and that the bollard system sufficiently orients pedestrians towards any oncoming forklift traffic.

44 Finally, Oxford says that the additional measures proposed by Mr Corben are problematic in that, for example:

•

Realignment of walkways would only slightly improve pedestrian sightlines of reversing forklifts at the cost of greater pedestrian exposure to oncoming forklifts;

•

Sensors and transmitters carried by pedestrians and forklifts may set off false warning signals; and

•

Adding further flashing lights and alarms may overload the sensory environment and adversely affect the concentration of personnel.

45 I consider that the evidence supports the conclusion reached by Mr Corben that the bollard system on its own suffers from a number of drawbacks, including that it does not:

• alert a preoccupied pedestrian to the fact that the door to a loading dock is open (and therefore in use);

• alert forklift drivers, particularly those reversing out of loading docks, to the fact that pedestrians may be in the pedestrian-forklift intersection; or

• address the restricted line of sight of the forklift driver reversing out of the loading docks.

46 In addition to finding that the bollard system has some drawbacks, I accept the evidence of Mr Corben and therefore find that there is a number of additional, reasonably practicable measures which could be taken, (either alone, or in combination) to reduce risk to pedestrian safety, including:

•

clearly controlling forklift speed and ensuring adequate stopping distances away from the pedestrian walkways;[19]

•

improving pedestrian and forklift sightlines at the relevant intersections by, for example, realigning the walkways[20];

•

clearly marking the intersections; introducing flashing lights above the loading dock doors to indicate they are open and forklifts are loading/unloading[21]; and

•

introducing flashing floor sensors in the walkways to alert pedestrians of forklift movement; and/or flashing lights triggered by beams to alert forklifts of pedestrian movement in the intersections[22].

47 Mr Fleiszig and Mr Hickey expressed a number of reservations about these proposed measures. They both conceded, however, that the bollard system does not signal to personnel when a loading dock is in use, nor to forklift drivers when pedestrians may be nearby. Overall, I consider that they were so concerned to defend the bollard system on its own as simple, user-friendly, requiring no maintenance and little supervision, that they over-emphasised the technological and operational burdens flowing from the measures recommended by Mr Corben, and gave insufficient attention to the need to implement all reasonably practicable measures which might further reduce the risk to pedestrians at the intersections in Freezers 11A and 11B.

48 For example, they emphasised that at any one time there will be a large number of personnel on foot around the pallets near the intersections and that it is difficult to distinguish between personnel heading to the amenities, who should be using the designated walkways and others (such as tally clerks or order-pickers), who are working around the pallets situated next to the pedestrian walkways. This is a difficulty which, given the risk involved, calls for a special solution, especially at peak periods of movement (such as meal breaks and shift changes). The solution may involve the introduction of technology and may require a high level of supervision and intensive education of personnel, along with sanctions for breaches. In addition, further measures may need to be contemplated to regulate the channels by which the workers access the pallets and the pedestrian walkways.

49 Another example concerns the introduction of flashing lights over or next to the loading dock doors. Mr Fleiszig said that personnel are trained to know that when a loading dock door is open, the loading dock is operating, and that introducing a flashing light over the open loading dock doors to indicate that the doors are open and that forklifts are operating would cause confusion to personnel. I prefer Mr Corben's evidence that with the current bollard system alone, personnel walking along the pedestrian walkway have little chance to see into the loading dock until they are almost in front of it and it is therefore desirable for them to be alerted to the fact that a loading dock is in operation by flashing lights above or next to the loading dock doors.

50 I also prefer Mr Corben's evidence to that of Mr Hickey concerning the need to improve pedestrian and forklift sightlines at the intersections. Mr Corben suggested realignment of pedestrian walkways as one means of achieving this improvement, but did not go so far as to recommend that Oxford implement such a measure. Mr Hickey dismissed realignment on the basis that it would put pedestrians closer to oncoming forklifts. I prefer the evidence of Mr Corben to the effect that realignment would be consistent with Oxford's safety rule requiring forklifts to give way to pedestrians and that any reduction in stopping distance for oncoming forklifts may be offset by other measures to improve the sightlines of oncoming forklift drivers, including limiting the stacking of pallets near the pedestrian walkways, and limiting speed of forklifts when approaching the intersections[23]. I accept, however, that Oxford may adopt measures to improve pedestrian and forklift sightlines which do not include realignment of its pedestrian walkways at each of the intersections.

51 None of the measures recommended by Mr Corben involves the introduction of a gate system or physical barrier proposed by Mr Murphy. However, the measures are similar to those recommended by VWA in its publications on forklift safety.

52 For example, VWA's forklift safety publications[24] recommend "decisive action to prevent, not just discourage pedestrians and forklifts from coming into close proximity" and include suggestions that employers:

• Clearly mark designated pedestrian crossings, ideally with boom gates, and introduce and enforce a right of way procedure;

• Display clear warning signs and traffic management signs;

• Use "smart" technology to trigger signals, boom gates and warning alarms;

• Flashing lights to warn of approaching forklifts are imperative in areas with high levels of ambient workplace noise[25].

53 In the light of the evidence, I consider that the measures identified by Mr Corben are reasonably practicable and would, if implemented by Oxford, further reduce the risk to pedestrian safety at the relevant intersections at the Site.

54 On balance, therefore, I consider that there is a basis for issuing an Improvement Notice under section 111 of the Act.

55 As outlined above, compliance with the Act may be secured a number of ways. In a statutory scheme which makes employers liable to prosecution and sanction for contraventions of the Act, it is clearly desirable that employers be encouraged, at all times, to do what is necessary to eliminate or reduce the risks to safety so far as is reasonably practicable. VWA can provide that encouragement by giving specific advice or guidance to an employer about the measures which VWA considers will achieve that objective.

56 It is particularly important that such advice be provided where a contravention of the Act is alleged. It is also particularly important, and only fair, that such advice should be specific enough to enable employers to know what measures they are to take[26]. Logically, wherever appropriate such advice should be provided prior to the issue of an improvement notice, so that dialogue can take place to resolve any differences between employers and VWA about the measures recommended.

57 In the event that resolution cannot be achieved, VWA may then issue the improvement notice and give directions concerning the steps to be taken to remedy the contravention. It is essential that such directions are specific enough for the employer to know exactly what has to be done in order to comply with the Act.

58 Given the tight timelines which govern the internal review process, and its limited nature as an appeal, it would also be more helpful for the VWA to consider obtaining an expert report, and sharing the conclusion of that expert's report with the employer, well before making the decision to issue the improvement notice. This would give the employer the benefit of knowing precisely what VWA recommends, as well as an opportunity to take the recommended steps and thereby avoid the need for an improvement notice to be issued.

59 Dialogue between VWA and the employer about any advice given by VWA may make an improvement notice unnecessary. Specific direction or advice in the improvement notice as to the precise measures which VWA considers will remedy a contravention may also reduce the need for employers to seek review in this Tribunal. It may also be desirable for guidelines to be formulated concerning the manner in which VWA will exercise its discretion under section 111 of the Act.

Should an improvement notice be issued in this case?

60 In this case, I accept Mr Corben's evidence as to the existence of reasonably practicable measures which, if adopted, will further reduce the risks to pedestrian safety at Oxford's Freezers 11A and 11B. However, I consider it appropriate in all the circumstances not to issue an improvement notice, but rather to indicate that Mr Corben's recommendations as set out at paragraph 46 above, are to stand as the advice of VWA pursuant to section 18 of the Act concerning compliance with the Act.

61 I have reached this conclusion for a number of reasons.

62 First, Oxford has gone to great lengths since April 2005 to identify what it should do to remedy the contravention of the Act. It engaged an expert in good faith to assist it, and adopted the recommendations made by that expert. Along the way, it kept VWA informed of its actions and decisions. During all that time, VWA did not take the opportunity to give Oxford advice or guidance in specific terms as to the measures it considered were necessary, in addition to those being proposed or recommended by Mr Hickey, in order to reduce risk to pedestrian safety so far as was reasonably practicable. In my opinion, it ought to have done so.

63 Secondly, the steps relied upon by VWA at the hearing before me as ones which would remedy the contravention of section 21 of the Act, no longer involve replacing the bollard system with a gate system (or "physical barrier" system as suggested by Mr Murphy) but involve adding to the existing bollard system a number of other measures designed to improve pedestrian safety. I consider that Oxford should be given the opportunity to implement within a reasonable time the measures proposed by Mr Corben, to the extent that it is practicable to do so, before being burdened with an improvement notice carrying criminal sanction.

64 Thirdly, the improvement notice, once issued, was deficient in not disclosing to Oxford precisely what steps were to be taken in order to remedy the contravention.

65 Finally, Oxford did not have the opportunity to consider and implement Mr Corben's recommendations prior to the issue of the improvement notice. For the reasons outlined above, I consider that it should be given this opportunity. In the event that Oxford fails to implement the measures recommended by Mr Corben within a reasonable time, which I consider to be three months, it is open to VWA to issue an improvement notice. That improvement notice should include specific directions as to the particular measures which must be implemented at the workplace in order to remedy the contravention alleged in the notice.

66 It follows from the above that the decision under review must be set aside.

[1] "Forklift Safety Reducing the Risk" 2nd Ed, Feb 2006, WorkSafe Victoria, pp. 3, 16.

[2] The bollard system involved the positioning of a high visibility red bollard with two yellow bollards. Another of the options trialled (trial 3) consisted of a gate system in which the opening of a gate set off a flashing blue light and beeper, warning forklift drivers that pedestrians are present.

[3] See the statement of Mr Gerald Smallacombe, Oxford's OH&S Manager, at Tribunal Book, p.130.

[4] See statement of Mr Smallacombe, at Tribunal Book, p 131.

[5] Improvement Notice V01004100192L/43-01.

[6] The Act, which repealed the Occupational Health and Safety Act 1985, came into effect on 1 July 2005. The Act followed an extensive review of the operation of the 1985 Act by Chris Maxwell QC.

[7] Sub-section 12(2) provides that the VWA exercises a discretion if, among other things, it forms an opinion or attains a state of mind.

[8] See section 17.

[9] Section 18 is consistent with the recommendation made at page 267 of the Maxwell Report that such a provision be included.

[10] See section 18 of the Act.

[11] See section 127, item 8 in the Table.

[12] See section 127, item 8 in the Table.

[13] See section 129 of the Act.

[14] See Australian National Railways Commission v Rutjens (1996) 66 IR 237.

[15] See, for example Chapter 9 of the WorkSafe publication "Forklift Safety - Reducing the Risk", June 2005; "A Guidebook of Industrial Traffic Management and Forklift Safety", Accident Research Centre Monash University, 2003, T Larsson & Ors; "Forklift Safety Reducing the Risk" 2nd Ed, February 2006, WorkSafe Victoria Forklift Safety Procedures Reducing Risk, February 2006; and "Fork-Alert System", National Safety Council of Australia Ltd tendered as Exhibit 2.

[16] See "Forklift Safety Reducing the Risk" 2nd Ed, Feb 2006, WorkSafe Victoria, p.15, which says traffic management plans should include "designated pedestrian crossings, ideally with risk control measures such as boom gates and overhead walkways".

[17] These include: the difficulties of maintaining, policing and supervising such a system, ensuring it is not subverted or avoided, and distinguishing between pedestrians who should be using the walkways and personnel such as tally clerks and order-pickers who need to walk around the pallets close to the walkways to do their jobs.

[18] The Bulla site has only 5 gates, 10 personnel who work in the building, and no order-pickers or tally clerks. Freezer 11B at Oxford has 22 loading docks, 80 trucks being unloaded daily by around 50 forklifts, and over 50 personnel doing order-picking and tallying which requires them to walk around the pallets in the carriageway.

[19] This step is also recommended at p. 6 of "Forklift Safety Reducing the Risk", 2003, WorkSafe Victoria.

[20] See Figure 1 - diagrammatic representation (concept form only) of potential changes to the existing alignment of pedestrian paths in the OCS site, Tribunal Book, p.78.

[21] As occurs at the Bulla site.

[22] See "Forklift Safety Reducing the Risk", 2003, WorkSafe Victoria, at page 5.

[23] See "Forklift Safety Reducing the Risk", 2003, WorkSafe Victoria, p. 4.

[24] "Forklift Safety Reducing the Risk", 2003, WorkSafe Victoria and "Forklift Safety Reducing the Risk", 2nd Ed, February 2006, WorkSafe Victoria.

[25] "Forklift Safety Reducing the Risk", 2nd Ed, February 2006, WorkSafe Victoria, p.16.

[26] See the recommendations made at pages 258-267 of the Maxwell Report.