Resources: Blogs

Don’t be so reckless

Blogs
|

Work health safety prosecution update

Codes set out the minimum standards to meet work health and safety requirements and are admissible in WHS prosecutions. Guides and Australian Standards will also be relevant safety material that employers should consider when creating safety documentation.

Two recent work health and safety prosecutions highlight to employers the importance of following adopted safety plans and having regard to available guidance material when developing safety documents and the serious consequences for safety offences.

The harmonized work health and safety legislation creates three categories of offences, the most serious of which is a Category 1 offence, which attracts maximum penalties of

  • $3 million for a corporation;
  • $600,000 for individual PCBU or officer and/or 5 years jail; and / or
  • $300,000 for a worker and/or 5 years jail.

In Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon [2018] NSWDC 27, the NSW District Court convicted a person conducting a business or undertaking (PCBU) with a Category 1 offence – the first prosecution of its kind - where an electrical shock lead to a fatality.

Cudal Lime Products Pty Ltd (CLP) operated a mineral mining and processing operation at an open cut limestone quarry in Cudal, NSW. Near the mine was a cottage in which Mr Barry Perceval, Plant Operator and his partner, Ms Liehr resided. On 27 August 2014, Ms Leihr was electrocuted after she came into contact with the metallic flexible shower hose and metallic waste drain in the shower which had become electrically charged due to a fault in the electrical system at the nearby mine.

The mine had a history of electrical issues and the mine safety plan (MSP) required electrical work to be undertaken by a qualified electrician or electrical engineer in accordance with the Australian Electrical Standard. At the beginning of 2014 the switchboard at the cottage was replaced after an arc fault damaged the old switchboard. At the time, CLP directed its Production Officer / Team Leader, Simon Shannon, who was not a qualified electrician or electrical engineer to perform electrical work on the switchboard.

CLP was charged with and pleaded guilty to the Category 1 offence of, without reasonable excuse, engaging in conduct that exposed Ms Liehr to a risk of death or serious injury and was reckless as to the risk of death. Mr Shannon also pleaded guilty to a Category 2 offence of failing to comply with his health and safety duty and exposing Ms Liehr to a risk of death or serious injury.

In setting the penalty, the Court held that the offence was in the mid-range of objective seriousness. The Court found that there were simple and easy steps which were reasonably practicable for CLP to have taken to eliminate or minimize the risk to Ms Liehr and Mr Perceval, including ensuring that electrical work was carried out by qualified persons and having a multiple earth neutral connection. The Court also found that CLP recklessly disregarded the risk of safety by directing Mr Shannon to install the switchboard to save costs.

CLP was convicted and fined $900,000 while Mr Shannon was also convicted and fined $48,000.

In Safe Work NSW v Universal Property Group Pty Ltd [2018] NSWDC 19, a PCBU constructing a residential apartment complex was charged with and convicted of a Category 2 offence of failing to comply with a health and safety duty and exposing a worker to the risk of death or serious injury after a Surveyor’s Assistant fell through a penetration and became impaled by a concrete reinforcing bar.

The worker attended the site with his colleague to survey a deck and found unmarked plywood covering a penetration. The worker thought that the plywood was a spare piece and after moving it, he fell through the penetration void, suffering injury.

The Court noted that the Safe Work Australia Guide to Formwork (the Guide) provided that only using plywood covers was not a satisfactory control measure and recommended that they be painted and marked and secured to concrete to carry different loads. The Court noted that the relevant Safe Work Method Statement only referred to the Guide generally, assumed knowledge and did not set out the required procedure.

The Court held that the risk of injury was obvious and control measures to cover the penetration were well known, simple and available and that the PCBU failed to properly supervise the contractors who installed the formwork.

The PCBU was fined $135,000 and ordered to pay the prosecutor’s costs.

 

Lessons for employers

The CLP matter is the first Category 1 offence which has been prosecuted and a conviction recorded. The significant maximum penalty that may be imposed under this category indicates the seriousness of the reckless conduct.

Both cases highlight that employers should have regard to Codes of Practice and other guidance material issued by work health and safety regulators to manage risks. Codes set out the minimum standards to meet work health and safety requirements and are admissible in WHS prosecutions. Guides and Australian Standards will also be relevant safety material that employers should consider when creating safety documentation.

 

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, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

Similar articles

Managing ill and injured workers

In her usual entertaining and informative style, our Managing Director and Principal, Athena Koelmeyer, will guide employers through the tangled web of legislative obligations they face when dealing with an ill or injured employee.

Read more...

Sole trader convicted and fined for WHS breach resulting in death of worker

In a recent decision of the NSW District Court, a sole trader has been convicted and fined $100,000 for breaching his health and safety duty under the Work Health and Safety Act 2011 (Cth), which resulted in workers being exposed to a risk of death or serious injury.

Read more...

Industrial manslaughter offence introduced in New South Wales

On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.

Read more...

FWC upholds summary dismissal of employee who refused to provide medical information confirming fitness to work

If you refuse you lose

Where there are concerns about an employee’s fitness to work, employers may rely on terms in their employment contract which require the employee to comply with the reasonable and lawful direction to undergo a medical assessment.

Read more...

QIRC rejects unfair dismissal claim due to clear evidence of misconduct

Swear by it

Employers have a responsibility to address and manage poor conduct and behaviour which may expose other workers to work health and safety risks in the workplace. Implementation of effective disciplinary processes are vital in curbing such risks that may lead to a poor workplace culture, which may in turn create psychosocial hazards.

Read more...

Third maximum term contract role not substantially similar work

Not the same

Amendments to the Fair Work Act 2009 (Cth) limiting the use of fixed term and maximum term contracts prohibit employers from providing employees with successive term contracts, unless an exception applies.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in workplace law and sports law.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.

Subscribe

* indicates required