In November 2014, the Supreme Court of Western Australia granted
leave to Worksafe to prosecute a company for serious alleged
breaches of the Occupational Safety and Health Act 1984
(the OSH Act), despite the company being in
liquidation and unable to pay any fine that may be imposed upon
The company in question was Australian Countertop Pty Ltd, whose
main business was designing and installing solid surface kitchen
bench tops. On 1 December 2011, an employee of the company was
assisting with unloading a delivery of stone slabs to the
company's premises in Bayswater. The employee was on the
ground, guiding a 220kg stone slab, which was being transported by
a forklift. As the stone slab was being placed on a rack, another
stone slab from the adjacent rack fell on the employee. The
employee was crushed between the two stone slabs and died.
The difficulty for Worksafe was that 'section 471B' of
the Corporations Act requires a party to obtain leave of
the Court prior to commencing any "proceedings" in court
against a company in liquidation. The purpose of this section is to
avoid the limited assets of a company in liquidation being spent
defending expensive and time-consuming litigation.
The liquidator did not object to leave being granted, but noted
that the company would not be able to pay any fine and therefore
questioned the worth of bringing the proceedings. Worksafe's
response was that it was important that a prosecution be commenced
and, if a contravention was proved, a criminal conviction be
recorded. Worksafe argued that others in the industry needed to see
that if safety measures were not taken, they would be liable to
prosecution and substantial penalties.
A legal question was raised as to whether a prosecution under
the OSH Act was a "proceeding" for the purposes of
'section 471B' of the Corporations Act. The Court
found that it was, and thus leave was required. The Court then
granted leave on the grounds that there was a real prospect that
the company may have breached the OSH Act. Implicitly,
Worksafe's submissions regarding the need for general
deterrence were accepted.
It can be presumed that the proposed prosecution is now
proceeding or soon to be commenced. In addition, Worksafe may
commence a prosecution (or has already done so) against any
directors, managers and officers of the company who "consented
or connived" to the alleged breach or for whom the alleged
breach was "attributable to any neglect" on their part
– the liquidation of the company will not affect their
personal liability nor protect them from any penalties imposed by
Worksafe Western Australia Commissioner v Australian
Countertop Pty Ltd (in liq)  WASC 413
Footnote: We have been informed by a
representative of Worksafe that the reference at paragraph 5 of the
judgment is incorrect, and that it was not in fact the fourth
fatality at the defendant's premises since 2007, but rather the
fourth fatality of its kind since that date – the previous
three fatalities were not related to this defendant.
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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