Australia: Individuals beware: WHS obligations apply to you!

Workplace Matters - Issue 7

The first prosecution of an individual under the national harmonised Work Health and Safety Act 2011 (Cth) (WHS Act) serves as an important reminder that compliance with safety obligations isn't just the responsibility of the faceless corporation. Although it has always been open to the regulator to pursue individuals for breaches of work health and safety (WHS) law, what individuals are doing (or not doing) to create a safe workplace has recently come into focus.

The message sent by this recent trend is loud and clear—ensuring the health and safety of workers is everyone's responsibility.

The first prosecution – R v Kenoss Contractors Pty Ltd [2014]

In the first prosecution of its kind under the WHS Act, charges have been brought against an individual of a defendant company for a workplace incident that occurred in 2012. Mr Al-Hasani has been charged as an "officer" of the defendant company Kenoss Contractors Pty Ltd.

The incident

The incident giving rise to these charges was the fatal electrocution of a worker when the elevated trailer on the tip truck he was driving touched a live power line above.

Recent cases recognise that individuals have a role to play in making and keeping workplaces safe, and demonstrate that regulators are actively testing the actions of individuals in senior management roles.

It is alleged that a series of basic safety breaches contributed to his death, including that:

  • there were no warning signs or flags to alert workers to the presence of live power lines
  • there was no spotter to help the worker dump and load, and
  • the power line was still live and had not been turned off.

Mr Al-Hasani was subsequently charged as "an officer" of the company that the deceased was working for at the time. The company was also charged.

What is required of an "officer"?

Under WHS laws, the term "officer" can include directors, company secretaries, and others who affect the company in certain ways. For example, a person who has the capacity to significantly affect a company's financial standing is an officer.

In short, the law requires an "officer" of the company, in this matter Mr Al-Hasani, to take action to ensure the company understands and has the resources to meet its obligations to worker safety. Mr Al-Hasani is currently defending the allegations that he failed to do this.

Significantly, Mr Al-Hasani has been charged as an "officer" despite being a director of a related company, rather than of the defendant company Kenoss Contractors Pty Ltd. If found guilty, Mr Al-Hasani could face a maximum fine of $300,000 and be slapped with a criminal record.

"Other persons at the workplace" are also held accountable

Officers are not the only persons being held accountable for breaches of WHS laws. In R v Samer Fatoula [2014], the NSW District Court charged an individual as an "other person at the workplace".

In this case, Mr Fatoula was contracted to carry out excavation duties collecting rubbish around a site using a bucket-like device. He was to empty the bucket of rubbish into trucks at the site entrance.

The relevant incident occurred when the raised bucket of the excavator fell and bounced, fatally striking another worker. Mr Fatoula was charged as both an "officer" and as an "other person at the workplace". Specifically, it was alleged that he failed to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons.

Although Mr Fatoula was subsequently found not to be guilty (as an individual) in his role in both capacities, this case is interesting in that the prosecutor pursued an individual under two provisions of the WHS Act that establish offences against individuals personally. Notably, the company of which Mr Fatoula was a director was not charged.

When will a regulator prosecute?

A regulator's decision to prosecute is a discretionary action and is used as a last resort. A number of issues are considered when determining whether to start a prosecution. The general public interest is the primary concern, but other factors considered include:

  • the admissible evidence capable of establishing the offence
  • the need for specific and/or general deterrence, and
  • the seriousness or the triviality of the offence.

A number of people can commit an offence out of the same incident and a regulator may select multiple defendants in this regard. This comes as a reminder to all that the regulator considers all persons, including individuals, when choosing an appropriate defendant for a particular case.

Lessons learned

Many of the WHS Act provisions establishing offences against individuals have, until recently, been largely untested. The recent cases charging natural persons in their capacity as individuals recognise that individuals have a role to play in making and keeping workplaces safe, and demonstrate that regulators are actively testing the actions of individuals in senior management roles. This is a stark reminder that liability for safety matters does not simply rest on a corporate entity and that in a number of states and territories, WHS regulators are shifting their interest to pursue individuals.

So, what lessons can you take home from this trend?

  1. Safety is everyone's responsibility.
  2. Individuals, not only officers, can and are being prosecuted.
  3. Individuals should be aware that WHS duties apply to them, in their capacities as "officers", "workers" and "other persons at the workplace".
  4. Individuals need to understand what their obligations require.

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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