Resources: Blog

Work health safety prosecution update


Don’t be so reckless

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

Court fines PCBU $60,000 for failing to re-assess the risks associated with changing site conditions

Set and forget

Persons conducting a business or undertaking (PCBUs) have a positive obligation to ensure, so far as reasonably practicable, the health and safety of workers and others.


SafeWork NSW successfully prosecutes a PCBU for failing its consultation obligations with other duty holders

Consult, co-operate and co-ordinate

Persons conducting a business or undertaking (PCBUs) have a range of positive duties and obligations to ensure the health and safety of workers under the model work health and safety laws in Australia.


Company vicariously liable for injury resulting from skylarking supervisor

All in good fun

Enjoying the company of your colleagues is something most people hope to find in the workplace. It can make work much more enjoyable and lead to lasting friendships. However, fun in the workplace can cross a line when it takes the form of dangerous skylarking or roughhousing.


Commission critical of employer’s entirely email-based disciplinary process

Words flying high

Communication between the employer and employees is essential for a good working relationship. Poor communication in the disciplinary process may lead to a deficiency in the process which renders the dismissal unfair.


Dismissals for temporary illnesses under the FW Act

Red Light, Green Light

Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury.


Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

Procedurally disastrous

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.


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 Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.