When setting a penalty for breaches of work health and safety (WHS) obligations, the Courts will look at the need for specific deterrence against the offender and also the need for general deterrence for employers and the particular industry.
In SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2)  NSWDC 163 the NSW District Court utilised its powers to impose an adverse publicity order against a business who was found guilty of failing to comply with its WHS duty and exposing two workers to risk of death or serious injury in breach of section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act).
The person conducting a business or undertaking (PCBU) was a construction and piling business. The PCBU had been contracted to undertake piling works at different sites for a residential construction company. On 15 February 2018, the PCBU was asked to supply and install timber mini piles at a construction site for the purposes of preparing foundations. The PCBU engaged a contractor to transport an excavator and three bundles of timber piles to the site.
When the contractor collected the piles, they were pre-slung and delivered to the site. At the site, the contractor and two employees (one of whom was a dogman) of the PCBU assisted the contractor with unloading the excavator and then the loads of piles. The contractor and the dogman both were on the back of the truck. As the piles was lifted, it swung in anti-clockwise direction and the contractor fell backwards before falling off the truck. He suffered a serious head injury and later died.
Having earlier found that the PCBU breached its WHS duties by failing to have in place a safe work method statement, failing to adequately train workers on the safe work method statement and failing to provide adequate supervision to workers (see SafeWork NSW v Saunders Civilbuild Pty Ltd  NSWDC 664), the District Court was required to determine the penalties to be imposed on the PCBU.
In setting the penalty, the District Court considered the PCBU’s submissions that it was a first offence, its cooperation with the regulator and its regret for the incident, and also the PCBU’s contributions to the local community and charitable organisations.
However, the District Court also considered that the offence was one of “significant objective gravity” which resulted in the death of a worker in circumstances where the risk was known and there were steps available to eliminate or minimise the risk.
Accordingly, the District Court convicted the PCBU and ordered it to pay a penalty of $375,000, half which was to be paid to SafeWork NSW.
In addition, SafeWork NSW sought an adverse publicity order be ordered against the PCBU. Under section 236 of the WHS Act, the Court has the power to order the PCBU to publicise the offence, its consequences, the penalty and any related matter. SafeWork NSW requested that PCBU, at its own expense, be ordered to take-out full-page notices in two industry magazines for a period of 6 months which set out the circumstances of the breach, that the PCBU had breached the WHS Act and the findings of the District Court in relation to the reasonably practicable steps it could have taken to address the risk to the workers.
SafeWork NSW submitted the purpose of the adverse publicity order was to raise awareness in the construction injury of the risk of falling from height whilst loading or unloading materials and plants at building sites.
The District Court was satisfied that the adverse publicity order was appropriate in this matter, having regard the objects of the WHS Act and promoting the publicising of risks, the elimination of risks and enforcement measures. The District Court also considered that it was appropriate to act as a deterrent and denounce the conduct of the PCBU.
Lessons for employers
The main objects of WHS legislation are to protect workers and others from harm while at work and to ensure adherence by way of compliance and enforcement measures. While penalties under the WHS legislation are intended to be financially punitive for past conduct, the Courts also have powers to make orders to promote ongoing compliance by individual businesses and across industries.
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.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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