Managers and supervisors can be at risk of personal liability
for safety breaches, even if the employer is not prosecuted. Veil
threat, you may think, that will never happen. The recent case of
Perry v Carter says otherwise. The case serves as a
powerful reminder that the more responsibility you have in the
workplace, the more proactive you need to be about health and
safety in the workplace.
The decision involved a site supervisor being prosecuted for a
breach of ss 21(1)(a) and 63A of the Occupational Health,
Safety and Welfare Act 1986 (SA) (Act) for a failure to take
reasonable care to avoid adversely affecting the health or safety
of workers. This case has broad implications, given the provisions
are mirrored in the uniform work health and safety legislation (WHS
legislation) that may be in force in your jurisdiction.
The site supervisor was responsible for the construction of
warehouses using precast concrete panels. On 28 June 2011, he
noticed that a panel had only one lifting and bracing point rather
than the usual two. The site supervisor did not mention this to
anyone at the site.
The crane lifted the panel into place and the site supervisor
asked two workers to manually adjust it to the required position,
which was normal practice. The site supervisor expected that the
crane would continue to hold the panel in place during this
adjustment. This did not occur. The panel was released and the site
supervisor failed to notify the workers. The panel fell and crushed
the cabin of a nearby truck. Fortunately the workers escaped
The site supervisor breached the Act through his failure to
ensure that the panel was supported by:
a minimum of two supports in accordance with the approved code
the crane, while the workers adjusted the panel's position,
two braces, which was specified in the drawings for the
panel's design plans.
The above actions were within the site supervisor's control
and his lack of action ultimately led to the workers being exposed
to a risk of serious injury or even death. As a result, he entered
a plea of guilty to the charges.
This was the site supervisor's first offence, so the maximum
penalty he could receive was $10,000 (far less than the $300,000
currently applicable to individuals under the WHS legislation). The
court imposed a penalty of $1,750 plus costs, taking into account
the fact that the site supervisor had:
demonstrated genuine remorse
cooperated with the investigation
pleaded guilty to the offence, and
taken measures to ensure that the incident would not
He was also required to undertake a construction safety
The case serves as a powerful reminder that the more
responsibility you have in the workplace, the more proactive you
need to be about health and safety in the workplace. If you see
something that you believe is not safe, then you should raise it as
an issue. This will demonstrate that you turned your mind to it in
the event that it becomes a safety matter. When it comes to safety,
protecting others is often the key to protecting yourself.
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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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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