The recent South Australian Employment Court (“SAEC”) case Goldenway Amusements Pty Ltd & Ors v SafeWork SA [2023] SAET 34 (10 May 2023) is an excellent example of how the Court will have consideration for the purpose, subject matter and scope of the Work Health and Safety Act 2012 (SA) (“WHS Act”) before anything else when making their decisions.
Goldenway Amusements Pty Ltd and a number of other associated entities (“the Applicant”) own and operate amusement rides that they transport around Australia to conduct their business at several different events throughout the year, including the Royal Adelaide Show.
In October 2017, three of the Applicants’ amusement rides were issued with Improvement Notices and in August 2022 one of their rides was issued a Prohibition Notice by SafeWorkSA.
The issue for SafeWorkSA was that the restraint devices used when these amusements are in motion allegedly did not provide a sufficient level of safety for the riders to meet the applicable Australian Standard. Those rides subject to the Improvement Notices were ordered to have a level 5 restraint type installed. The ride subject to the Prohibition Notice was required to have a level 4 restraint type installed.
The Applicant argued all of their rides were fitted with a primary locking device that is adjustable to fit the riders. It also has a secondary locking device that operates independently of the primary lock and will prevent the restraint from releasing. They considered this to be sufficient to meet their restraint requirements and did not recall this ever being disputed in any other State.
SafeWorkSA argued the secondary locking device was not adjustable and therefore was automatically set to accommodate someone of the maximum rider size ‚which is 196cm tall. They considered the secondary locking device would do very little to protect the riders who are less than 196cm if the primary restraint failed.
The notices issued to the Applicant are due to be externally reviewed by the SAEC at a trial later this year, however, a date for this has not yet been set.
This year, the Applicant has applied to the SAEC to have their 4 notices stayed in light of the pending trial date so they can bring their rides to the 2023 Royal Adelaide Show.
As a part of this Application, the Judge of the SAEC heard an argument the applicant will be prejudiced if their stay is not granted because they will forgo significant expected revenue if unable to attend the 2023 Royal Adelaide Show. Similarly, the Judge heard the argument that SafeWorkSA would be prejudiced by the granting of this stay, as their efforts to protect the safety of the public, by way of the notices, would be quashed.
The Judge found the safety of the public was more important and better aligned with the object of the WHS Act than the potential financial consequences for the Applicant. Therefore, the Applicant’s application was rejected, and they will need to wait until they have an outcome in their upcoming court proceedings before they can operate their rides in South Australia again.
