At the May Safety Networking Group meeting Damian Hegarty, Senior Associate from Kaden Boriss Legal, presented the details of a number of legal proceedings that provide insights into how the harmonised legislation is being interpreted and applied as part of recent prosecutions.
To date, 72 matters have been prosecuted by WHSQ under the (harmonised) 2011 Work Health & Safety Legislation; however only 3 have proceeded to trial (with the rest accepting a guilty plea). Unfortunately, with these matters being heard within the Magistrates Court there is typically only limited commentary of the particulars of each case.
There have also been 2 WHS prosecutions of company directors, the most interesting of which related to an ‘Officer’ who failed to exercise due diligence in managing the risks associated with pedestrians working around forklifts and vehicles in a warehouse environment. The ‘Officer’ pleaded guilty to the charge.
The financial penalties that are currently imposed are very similar to those under the 1995 Act (e.g. a fracture injury typically incurs a $50,000 fine). The Courts are also utilising the alternatives available under the Act, such as Training Orders and Good Behaviour Bonds, in addition to the monetary penalties to reflect the increase in the maximum penalty under the 2011 Act.
There are also some learnings that can be gleaned from cases in other harmonised jurisdictions, for example:
- A recent WorkCover Tasmania prosecution charged a Principal Contractor with failing to manage and maintain a safe system of work after an on-site fatality. A successful defence was established, based on the Principal Contractor’s ability to rely on sub-contracted ‘specialist’ expertise. While this case referred to the precedents set from the Baiada case it should be noted that determining what is ‘reasonably practicable’ is dealt with on a case-by-case basis.
- WorkCover NSW recently charged the PCBU with a category 2 offence after a fatality within a glass factory, however the magistrate found that the foreseeability of the risk to the worker from the activity is an element, but a single breach in the established workplace system resulting in an injury will not render the employer liable for a failure to ensure safety.
Damian detailed that some organisations have partially mitigated their risks in relation potential penalties, by being pre-emptive and committing resources to corrective actions and training.
We thank Kaden Boriss for their ongoing support of the Safety Networking Group, and we will endeavour to keep the Group informed of pertinent legal cases that may continue to clarify how the regulators are applying the legislation.
ABOUT THE SNG:
In 2005 QRMC founded the Safety Networking Group for senior safety professionals working in the greater Brisbane metropolitan area. QRMC continues to coordinate and arrange for speakers to present at quarterly meetings and discuss information on contemporary WHS issues. Group members also share information from their workplaces or industries, which other members frequently find interesting and useful.