Australia: Queensland set for WHS crackdown

Over the past five years, all Australian jurisdictions (with the exceptions of Victoria and Western Australia) have adopted harmonised work health and safety legislation (WHS legislation).

Under this legislation, monetary penalties for failing to ensure the health and safety of workers have increased significantly.

In particular, recent decisions in the Commonwealth and New South Wales jurisdictions have indicated that courts are now more willing to impose higher range penalties for WHS breaches in line with the legislation.

Penalties explained

Under the WHS legislation, penalties are scaled against the severity of the offence and fall under three categories.

A corporation charged with the most serious breach – a category one offence for recklessly exposing an individual to a risk of death or serious injury or illness – may face a maximum penalty of up to $3 million, while an officer may face a maximum penalty of $600,000 and five years' imprisonment. No corporation or individual has been convicted of a category one offence as yet, and it is only recently that a handful of prosecutions have been commenced under this section.

The more commonly prosecuted category two offence arises when an individual is exposed to a risk of death or serious injury or illness. A corporation faced with a category two offence may be subject to a maximum penalty of $1.5 million, while an officer faces a maximum penalty of $300,000.

Category three offences are breaches of the legislation when there has been a failure to comply with a health and safety duty, but without risk of serious harm or recklessness. In these cases, a corporation will be subject to a maximum penalty of $500,000 and an officer, $100,000.

The largest penalties on record

On 19 April 2017, the South Australian (SA) District Court handed down a fine of $650,000[1]—the largest penalty to date under the Work Health and Safety Act 2011 (Cth), and almost $300,000 more than the highest penalty awarded under the previous legislation.

The incident involved a new chemical waste product that was being tested at the Wingfield Chemical Waste Processing Plant. The employees undertaking the process had been incorrectly advised what the temperature of the product should have been during the distillation process. When an employee opened the release valve, it caused an explosive rush of air, covering another employee in the undistilled material. Fortunately, the employee was wearing personal protective equipment (as required by the work manual) and only suffered a wrist sprain from the incident.

Despite the relatively minor injury, the employer was charged with a category two breach for failing to ensure, so far as reasonably practicable, the health and safety of workers and exposing them to a risk of death or serious injury or illness. In handing down the record breaking fine, her Honour took into account that:

  • A significant aggravating factor was that the risk of injury was foreseeable, even if the precise circumstances of the risk were not.
  • The offence was further aggravated because the risk of injury was foreseen and an adequate response was not undertaken.
  • The gravity of the consequences does not, of itself, dictate the seriousness of the offence or potential penalty, however death or serious injury may manifest the degree of the seriousness.
  • The systematic failure by the employer to address a known or foreseeable risk.
  • A neglect of simple well-known precautions to deal with an evident and great risk of injury takes the matter into the worst case category.
  • The defendant had committed three contraventions of the previous Commonwealth WHS legislation, dealt with by way of civil penalties.
  • An explosion and fire had previously occurred at the site due to the distillation of what was then a new substance.
  • A fine of $850,000 would have been appropriate, but for the early guilty plea.

NSW also saw its largest penalty handed down recently under the harmonised Work Health and Safety Act 2011 (NSW) on 5 May 2017.

WGA Pty Ltd was convicted of a category two offence for failing to ensure the health and safety of the worker so far as reasonably practicable, having exposed them to a risk of death or serious injury or illness.[2] In this case, the director of the defendant company blatantly disregarded its safety obligations when he instructed a subcontractor to install angles on windows, knowing that scaffolding outside the apartments being worked on could not be used without a person coming within three metres of high voltage power lines. During installation, the angle the worker was holding came into contact with the power lines and he suffered a severe electric shock resulting in burns to 30% of his body.

In handing down the massive $1 million fine, which was double the amount of the largest fine previously issued in this jurisdiction, his Honour took into account that:

  • The risk to workers working was clearly known and the likelihood of the risk occurring was high if control measures were not adopted.
  • The likelihood of the risk was increased if workers were required to handle tools or materials that would come within close proximity of the power lines.
  • The defendant was told of the risk posed.
  • The gravity of the risk was significant and included a risk of death.
  • The company had previously been issued with three prohibition notices on the same subject matter and an improvement notice relating to the risk.
  • The defendant had knowledge of the content of the task that was required to be performed and of the steps required to eliminate and/or avoid the risk, including the need to isolate the power.
  • The defendant was aware the power lines would not be isolated on the relevant date.
  • The company took none of the steps that it had been informed of to eliminate or minimise the risk.
  • The extent of the injury was significant.
  • The defendant did not have any previous convictions.

What does this mean for Queensland?

To date, there have only been eight reported prosecutions under the harmonised Work Health and Safety Act (2011) (Qld) (WHS Act) that have resulted in fines of more than $100,000—the highest of which was $200,000, which is only equivalent to 13% of the maximum fine of $1.5 million.

However, in light of a number of tragic, fatal safety incidents during 2016, the Queensland Government has turned its attention to the state's work health and safety compliance regime. It announced a best practice review of Workplace Health and Safety Queensland in April 2017—including an assessment of whether current penalty levels act as a sufficient deterrent to non-compliance—and in May 2017 (before finalising this review) announced in advance that it would introduce a new criminal WHS offence of 'negligence causing death' . While the details of this offence are yet to be finalised, it is likely to impose significant penalties on directors and/or workers for WHS breaches.

Given the increase in penalties handed down interstate under the harmonised legislation and this renewed focus by the Queensland Government on the enforcement of the WHS Act, it is anticipated that prosecutions will rise, and that prosecutors and the courts may become more willing to consider larger penalties when confronted with serious breaches.

This change in climate should serve as a reminder to all duty holders that, should they fail to take proactive steps to ensure the health and safety of workers, serious charges could be brought against them accompanied by very significant penalties.

This article was originally published in the July 2017 issue of Proctor and is republished here with their kind permission. Click here to read the article.

Notes

1 R v Cleanaway Operations Pty Ltd (South Australian District Court, Judge Davison, 19 April 2017).

2 Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92.

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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