Australia: First Officer charged under Work Health & Safety Act

In the first prosecution of its kind, a company officer in the ACT has been charged under the Work Health & Safety Act 2011 (ACT) (WHS Act).

Mr al-Hasani (Officer) of Kenoss Contractors Pty Ltd (the PCBU) has been charged by WorkSafe ACT over an incident that resulted in the death of a worker in March 2012. The PCBU has also been charged.

This case demonstrates that WHS regulators are prepared to prosecute individuals in senior management roles about workplace incidents, if they fail to satisfy their officer obligations under the WHS Act.

It provides an important reminder to senior managers that they have an individual responsibility to ensure reasonably practicable steps are taken to maintain a safe work environment, and are potentially liable when accidents occur in the workplace.

The incident

In March 2012, Michael Booth, a 48 year old truck driver engaged by the PCBU, died from electric shock injuries sustained at a worksite in Turner, ACT. Mr Booth was operating a tip truck when the elevated trailer made contact with a power line while off-loading gravel at a dumping station.

The charges against the Officer

The Officer faces two charges under s 32 of the WHS Act for failing to comply with a health and safety duty. Section 32 provides that a person commits a category 2 offence if that person has a health and safety duty that they fail to comply with, and that failure exposes an individual to a risk of death or serious injury. A category 2 offence carries a maximum penalty of $300,000 for an officer.

The Officer's obligations

Under s 27 of the WHS Act, the Officer was required to exercise "due diligence" to ensure the PCBU complied with its obligations. The primary duty of care that the PCBU owed to the worker, under s19 of the WHS Act, required it to ensure, so far as reasonably practicable, the health and safety of its workers while at work, including the provision and maintenance of:

  • a work environment without risks to health and safety, and
  • safe systems of work.

The due diligence steps that the Officer was required to take to ensure the PCBU complied with its s 19 obligations, include to:

  • acquire and maintain up-to-date knowledge on WHS matters
  • gain an understanding of the nature of the PCBU operations and the hazards and risks associated with those operations
  • ensure the PCBU has, and uses, appropriate resources and processes to eliminate or minimise risks
  • ensure the PCBU has appropriate processes for receiving and considering information on incidents, hazards and risks, and responds in a timely way to that information, and
  • ensure the PCBU implements processes for complying with its obligations under the WHS Act.

The charges against the PCBU

The PCBU has also been charged with a category 2 offence under s 32 of the WHS Act on the basis that it had a health and safety duty that it failed to comply with, resulting in the death of the worker. The maximum penalty against a PCBU for a category 2 offence is $1.5m. The charges against the PCBU and the officer are similar and relate to a failure to maintain safe systems of work and a failure to maintain a safe work environment without risk to health and safety.

The case so far

The Officer has pleaded not guilty to the charges in the Industrial Magistrates Court. A preliminary question that will need to be determined at hearing is whether or not Mr al-Hasani is indeed an officer as defined in s 9 of the Corporations Act 2001. It is understood that Mr al-Hasani was not a director of the PCBU, but rather a director of a related entity.

In acknowledging the charges, the ACT Work Safety Commissioner, Mark McCabe, commented that the case sent an important reminder to officers that they have an individual responsibility to maintain a safe work environment, and are potentially liable for incidents at work that pose a risk to health and safety. The targeting of senior managers sends a strong warning that liability for safety matters may not rest with companies alone, but also with senior managers. This is in line with the purpose of the new laws, which were designed to ensure that people at the highest level are personally accountable for what happens within the company.

The case has been scheduled for hearing from 17-19 December 2014. The outcome of this case will provide important clarification on a number of points including:

  • who will be deemed to be an officer for the purpose of obligations under the WHS Act, and
  • the measures to which an officer has to meet to satisfy due diligence obligations under s 27 of the WHS Act.

We will keep you informed of any developments on this important case.

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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