An employee in WA was tragically killed in a workplace
accident when a pack of crane components slipped in the course of
being lifted. The employer company and directors were prosecuted
for breaching the OHS Act 1984 (WA) (Act) by failing to
provide a safe workplace. The result was that the directors were
slugged with a $45,000 fine on top of the $90,000 fine imposed on
Significantly, the directors were prosecuted on the basis the
offence "occurred with the consent or connivance of, or
was attributable to any neglect on the part of any director
The directors argued that they had discussed the appropriate
(and safe) lifting method with the yard supervisor and assumed this
method was being used. The Court said the steps taken by the
directors were inadequate and that they should have tried to ensure
a safe system of work. This was because of, among other things, the
directors' knowledge of the hazard and the appropriate safe
lifting method; that it was foreseeable that an employee might use
an alternate and unsafe method; and there was a lack of safety
induction and training procedures.
Although the prosecution occurred in WA which has not signed up
to the harmonised WH&S regime, the case is still a cautionary
tale. Significantly, the recent harmonised regime introduced a
positive obligation on "officers" of "persons
conducting a business or undertaking" to "exercise due
Ultimately, the failure in this instance was due diligence in
relation to a safe system of work. Ensuring that processes are
implemented and followed is vital to ensuring health and safety,
and this squarely falls within the scope of the "due
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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