A recent noteworthy decision handed down by the Magistrates Court of Western Australia concerned a breach by an employer of its general duty to provide a safe working environment for its employees. The mining company employer had entered a plea of guilty to the breach, but argued that no penalty, or a low penalty, should be ordered by the Magistrate on the basis that it had a rigorous safety assessment regime in place which mitigated the impact of the breach. The Magistrate accepted that the employer had a genuine consciousness of safety and rejected the prosecution's call for a maximum penalty ($200,000), instead ordering the employer to pay a fine of $2,000. This is an important decision as it demonstrates the need to have a proactive safety regime in place. Not only will such a regime result in fewer injuries to employees, it will also provide invaluable evidence of the safety culture of a company when a court is hearing a claim of breach of safety obligations and/or imposing a sentence.
A summary of the case
In a case heard on 3 August 2010, Department of Minerals and Energy v Kalgoorlie Consolidated Gold Mines Pty Ltd, the Magistrates Court found that Kalgoorlie Consolidated Gold Mines Pty Ltd (KCGM) was liable for a penalty for breach of section 9 of the Mines Safety and Inspection Act 1994 (WA) (MSI Act) and awarded a small fine. DLA Phillips Fox partner Guy French was the solicitor for KCGM.
KCGM is a gold mining company that operates a gold mine located east of the town of Kalgoorlie known as the Fimiston Open Pit. The Fimiston Open Pit is the largest open cut gold mine in Australia. As part of its plant, KCGM had a Caterpillar truck which the Resources Safety division of the Department of Minerals and Energy (DME) (now the Department of Mines and Petroleum) alleged was unsafe for the purposes of section 9 of the MSI Act.
KCGM entered a plea of guilty to the charge but argued that no sentence ought to be imposed on the ground that KCGM had turned its mind to the safety of the truck. In support of this argument, KCGM explained how it conducted a team-based risk assessment on its plant and machinery upon acquisition. These assessments identified different risks with the truck and made recommendations for improvements. KCGM also implemented safe work practices in relation to the truck, such as a general instruction by KCGM for employees to always have three points of contact when climbing on or off the machine.
KCGM also argued that it had a general commitment to safety and that it wasn't "a company that just produces glossy magazines and pays lip service to safety." In support, KCGM pointed to the practice of its General Manager who regularly conducted "safety habit observation task" assessments (known as "Shot assessments") in which he would watch and assess how an employee performed a particular task. The General Manager would then make recommendations on how to improve the safety of the particular employee or task. The General Manager had conducted 78 "shots" in 2010 at the time of the hearing.
As a result of these factors and the relatively minor nature of the breaches, KCGM argued that the breaches fell at the lowest end of the scale. In response, the prosecution argued that the maximum penalties prescribed in the MSI Act reflected the serious nature of an employer's failure to comply with their duties to ensure safety. It pointed to the fact that the MSI Act specifically provides that even first-time offenders may be liable for a maximum fine of $200,000. The prosecution also argued that when imposing a penalty, regard should be had to both specific and general deterrence.
The Magistrate accepted that KCGM had a"genuine consciousness of safety" which placed the breaches at the lower end of the scale. In relation to deterrence, the Magistrate found that it wasn't appropriate to increase the penalty simply because of the size of the corporation.
If the prosecution's argument had been successful the company would have beenliable for a fine of $200,000 and, perhaps of more concern, a public impression that KCGM was an unsafe employer. Instead, the decision affirmed that KCGM is a safety conscious organisation that valued its employees' safety.
What should you do?
The decision highlights the relevance of being proactive with regard to workplace safety to the sentence or penalty a court will impose on an employer (whether it is a prosecution under the MSI Act or the Occupational Safety and Health Act 1984 (WA) (OSH Act)).
For example, where an employer has in place safety assessment procedures to ensure the safety of machinery, such actions will not only help to avoid risk of injury to employees but also provide valuable evidence of the safety consciousness of the employer company. Such evidence will be viewed positively by a court when considering the penalty to be imposed when a company is found guilty or pleads guilty to an offence under the MSI Act or OSH Act.
© DLA Phillips Fox
DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.