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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.