A case recently heard in the Industrial Court of New South Wales
demonstrates the Court's willingness to impose severe penalties
for blatant breaches of safe work methods.
In Inspector Hall v BU Hazardous Material Removal and
Demolition Pty Ltd and Ung, the company ("BU") and
its sole director, Mr Ung, were charged with breaching section 8(1)
of the Occupational Health and Safety Act 2000 by
failing to ensure the health, safety and welfare of its employees
The charge arose from an incident where a new employee, working
unharnessed on a roof, fell approximately eight metres to the
ground, suffering serious injuries.
Whilst BU had a Safe Work Method Statement ("SWMS") in
place for this particular job, it had been "breached in
the clearest possible terms". BU's failure to comply
with the SWMS included knowingly failing to provide enough fall
arrest devices for the employees working on the roof, failing to
instruct the injured employee on the use of the fall restraint
system and general safety methods and failing to ensure that there
was adequate supervision of the employees working at heights.
The Court found Mr Ung culpable as he was physically present at
the time of the incident and knew that there were insufficient
safety harnesses for those working on the roof. The Court also
noted that, whether or not he was actually present, as a Director
of a corporation he would be taken under section 26 of the Act to
be guilty of the same offence as that committed by the
The Court held that the circumstances of this case were such
that the defendants had "knowingly and deliberately
disregarded the requirement [to provide a safety harness] and
knowingly exposed [the injured man] to a most serious risk of
injury in all of the circumstances in which the work was being
carried out". It imposed a penalty of $300,000 on BU and
$30,000 on Mr Ung personally.
What would have happened if the worker had
S. 32A of the NSW Act would in those circumstances allow a
charge of reckless conduct causing death at a workplace by a person
with OHS duties. The maximum penalty for a corporation would be
$1,650,000 and for an individual $165,000 or imprisonment for 5
years, or both.
And what if the incident occurred in WA?
The offender would probably be charged under s 19A (1) of the
equivalent WA legislation (Occupational Health and Safety Act 1984
(WA)), for gross negligence i.e. knowing that the breach would be
likely to cause death or serious harm but nonetheless taking the
risk. The maximum individual penalty for a first offence is
$250,000 and imprisonment for 2 years, and for a body corporate,
for a first offence, a fine of $500,000. The penalty would apply
regardless of whether the injured man died or survived the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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