Witness for the prosecution: Prosecutions under the WHS Act

In our last instalment of our three part blog series we will focus on the most extreme form of enforcement under the Model Work Health and Safety Act, prosecutions.  

Prosecutions can only be brought by certain parties as set out under section 230 of the Model Work Health and Safety Act (Model WHS Act).  If the Court finds that obligations under the work health and safety legislation have been breached, the resulting penalty will depend upon the category of the offence.

Category 1 Offences

Category 1 offences are related to reckless conduct.  This applies when a person has a health and safety duty and without any reasonable excuse, engages in conduct that exposes an individual to the risk of death or serious injury or illness and the person is reckless as to that risk to the individual.  The maximum penalties for Category 1 offences are:

(a)  $3 million for a corporation.

(b) $600,000 for individual PCBU or officer and/or 5 years jail. 

(c)  $300,000 for a worker and/or 5 years jail.

However, in some jurisdictions, penalties may be extended even further.  It has been reported that the Queensland Government is looking to introduce the offence of “gross negligence causing death” and may increase the maximum penalties currently available. 

Similarly, the Western Australian Government may amend its draft WHS laws to include 20 year jail terms (rather than 5 years) for recklessness. This proposal comes on the back of submissions to the State’s Parliament that the model WHS laws failed to address key issues around grossly negligent conduct.

In a matter still before the Courts, a NSW employer and two workers were the first parties to be charged under the Model WHS Act for a Category 1 offence after a non-worker was electrocuted and subsequently died in August 2016.  The workers are alleged to be officers, meaning they made or participated in the making of decisions that affected the whole or a substantial part of the business or undertaking, including decisions about workplace health and safety.

Category 2 Offences

A Category 2 offence applies where a person fails to comply with a health and safety duty, and the failure exposes an individual to a risk of death or serious injury or illness.  Under section 32 of the Model WHS Act the maximum penalties for Category 2 offences are:

(a)  $1.5m for a corporation. 

(b) $300,000 for an individual PCBU or officer. 

(c)  $150,000 for a worker.

For example, in May 2016, Romanous Contractors and its director were convicted in the District Court of NSW and fined $425,000 and $85,500 respectively after a 55 year old bricklayer fell and died on site.  The SafeWork NSW investigation revealed that a penetration with a 5 meter drop had been covered with plywood but, unfortunately, the plywoods was not secured to the concrete slab and the bricklayer fell through it.

Category 3 Offences

A Category 3 offence applies where a person has a health and safety duty and fails to comply with that health and safety duty. The maximum penalties specified by section 33 of the Model WHS Act are:

(a)  $500,000 for a corporation. 

(b) $100,000 for an individual PCBU or officer. 

(c)  $50,000 for a worker.

For example, in March 2017 a Queensland employer was fined $25,000 by the Toowoomba Magistrate’s Court after a worker fell from a step ladder while trying to clear a blockage in a commercial oven. The employer pleaded guilty to breaching Queensland’s WHS Act and was ordered to pay $1,589 in addition to the fine imposed by Workplace Health and Safety Queensland.   

Minimising risk

In order to minimise the chances of an individual, officer or body corporate being prosecuted under work health and safety legislation, it is important that an organisation and the individual officers themselves ensure that everyone is complying with their WHS obligations. 

Some ways to do this include:

  • Regularly auditing to ensure checking that everyone (including upper management) is aware of their WHS obligations;
  • Regularly conducting training (including refresher training on a regular basis);
  • Ensuring processes and policies are in place to comply with any work health and safety laws and Codes of Practice; and,
  • Most importantly, that the organisation enforces its safety systems and culture by dealing firmly with those who fail to comply with work health and safety systems.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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