Australia: Getting the Blues - Interstate comparatives now apply to WHS penalty assessments

WHO SHOULD READ THIS

• Managers and work health and safety professionals.

THINGS YOU NEED TO KNOW

• A recent appeal decision means that work health and safety penalties in Queensland will now be benchmarked against comparatives in other jurisdictions that also have harmonised WHS laws. Much higher penalties may now be imposed for breaches of WHS legislation.

WHAT YOU NEED TO DO

• Continue to ensure there are appropriate steps in place for identifying and managing work health and safety issues. However, it is also prudent to now consider:
• • whether incident management plans have the right protocols are in place, including for the involvement of legal advisors as part of post incident management, and
  • the coverage under current insurance arrangements, particularly whether statutory liability insurance products are appropriate and whether existing insurance is responsive in supporting businesses from the date of the incident.

The recent District Court of Queensland decision in Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 signals a new era in work health and safety (WHS) penalties in the State, and with New South Wales comparative cases now needing to be considered, Queensland has been found to be behind on the scoreboard in this particular State of Origin battle.

What happened

The Williamson matter involved a 2012 incident in which a worker was fatally injured by a gas strut while working on a prototype boat rack at a camper trailer manufacturing business. Workplace Health and Safety Queensland (WHSQ) investigated the incident and noted, among other things, that no risk assessment had been undertaken on the work being performed at the time of the incident and that there were no written work procedures for the safe installation of gas struts. There were also concerns regarding the competency of the persons involved in terms of whether an appropriate design application was being used for the struts and also whether there was adequate supervision.

WHSQ commenced a prosecution alleging that the defendant company had breached section 32 of the Work Health and Safety Act 2011 (Qld) (WHS Act) for failing to comply with a health and safety duty, which exposed persons to a risk of death or serious injury.

At first instance before the Magistrates Court, the defendant company was fined $90,000 (from a potential maximum of $1.5M), with no conviction recorded. Amongst the considerations in setting this penalty were the fact that the defendant company:

• had not shown a cavalier attitude
• had not previously been convicted of any WHS breaches
• had taken post-incident steps to ensure enhanced WHS
• was a business that operated on slim margins
• had been cooperative with the WHSQ investigation, and
• had been compassionate towards the victim's family and colleagues.

Reasons for appeal

The penalty was appealed by a WHSQ representative as being 'manifestly inadequate' on the basis that:

• no or insufficient weight was given to general deterrence
• too much weight was given to post-offence measures
• no or insufficient weight was given to the failure to take even basic risk assessments or to seek expert advice when engaging in a novel area, and
• the sentence was well out of line with sentences imposed for similar offences under the national WHS laws throughout Australia.

It was further asserted that the Magistrate had erred by not recording a conviction.

Notably, when the decision by the Magistrate was handed down on 16 July 2015, the prosecution was not in a position to make submissions about appropriate penalty, due to the effect of the High Court decision in Barbaro v R (2014) 253 CLR 58. By the time of the appeal, section 15 of the Penalties and Sentences Act 1992 (Qld) had been amended so as to negate the impact of the Barbaro decision in this regard.

The appeal outcome

On appeal, District Court Judge Dearden accepted that the penalty at first instance was determined without properly accounting for the gravity and seriousness of the breach, as well as failing to give sufficient weight to the need for general deterrence and denunciation having regard to the range of penalties available. When resentencing the defendant company, Judge Deardon accepted that the harmonised WHS legislative scheme - which currently applies in New South Wales, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory - permitted sentencing courts to take into account decisions from other harmonised jurisdictions for guidance on the appropriate penalty as part of ensuring consistency.

This is significant because penalties in Queensland have traditionally been lower than in some other jurisdictions, most notably decisions handed down in New South Wales. When seeking a revised penalty in this matter, six of the seven interstate comparative cases put forward by WHSQ were from New South Wales.

When taking the comparatives into account, Judge Dearden considered that a penalty in the order of $250,000 would be appropriate in this instance but noted that, depending on the circumstances, an appropriate range could be from $200,000 to $400,000. Ultimately, the penalty imposed on the defendant company was $125,000, taking into account the company's particular circumstances, the long delay in the matter being finalised, the issues arising from the Barbaro decision, and the fact that this was the first appeal to address the issue of the harmonised national WHS laws.

Judge Dearden did not agree that the Magistrate had erred by not recording a conviction, such that this aspect of the sentencing remained unchanged.

What this means for Queensland duty holders
There is no doubt that WHSQ will seek to impose penalties for breaches at an appropriate level to effect general deterrence, and the Williamson decision means that Queensland WHS Act duty holders are now potentially exposed to significantly higher penalties that will assist in achieving that goal.

In the April 2017 edition of the eSafe newsletter, the head of WHSQ, Dr Simon Blackwood, is quoted as saying in relation to this decision that, 'a bigger fine is a greater deterrent and sends a strong message that safety duties cannot be ignored when doing business'.

This outcome reinforces the need for concentrating on preventing WHS incidents through effective hazard identification and management. However, it also means that in the event of a breach, the stakes are now higher. In order for Queensland duty holders to try and 'beat the Blues', there is a clear need for duty holders to understand their rights and responsibilities, as well as considering:

• whether incident management plans have the right protocols are in place, including for the involvement of legal advisors as part of post incident management, and
• the coverage under current insurance arrangements, particularly whether statutory liability insurance products are appropriate and whether existing insurance is responsive in supporting businesses from the date of the incident.