Australia: Courts Get Tough On Serious OHS Breaches: Sentencing Under The New Victorian Penalty Regime

Several sentences handed down in the Victorian County Court during the past 12 months demonstrate a deliberate and significant increase in fines imposed for breaches of the Occupational Health and Safety Act 2004 (Vic) (OHSA) where a fatality is involved.

One of the major changes brought about by the replacement of the Occupational Health and Safety Act 1985 (Vic) by the OHSA was the almost fourfold increase of the maximum penalty available for breaches of the Act. The maximum fine for an offence jumped from $250,000 under the 1985 Act to over $900,000 under the 2004 Act. As prosecutions for breaches of the new Act are only now reaching their conclusion, a pattern has emerged illustrating a willingness by the judiciary to impose significant fines under the new penalty regime, particularly for those breaches resulting in fatalities.

In R v Star Track Express Pty Ltd, the employer was found guilty to an offence of failing to provide and maintain, so far as was practicable, for employees a working environment that was safe and without risks to health. The employer hired a forklift with a "high mast" and an employee operating the hired forklift was fatally injured when the forklift's mast collided with an overhead beam causing the forklift to roll onto its side.

The company was fined $200,000. This sentence was the first imposed for a breach of the 2004 Act that resulted in fatality.

In his sentencing reasons Judge Kelly referred to a number of aggravating factors:

  • the employer failed to enforce the rule of wearing seatbelts when driving forklifts despite knowledge of the obvious risk that not wearing seatbelts posed to employees;
  • the employer failed to enforce the notice placed on the forklift that it was only to be driven in a certain area of the factory; and
  • the employer's response to a similar incident that occurred only the day before the deceased's accident was inadequate.

As such His Honour concluded that the company 'failed in a most serious way to provide a safe workplace to its employees'.

In the second workplace fatality case heard before the County Court, R v Camden Neon Pty Ltd, the employer pleaded guilty to one count contrary to s.21(1) of the Occupational Health and Safety Act 2004 (Vic). The company was fined $300,000.

An employee was killed when electrocuted whilst replacing globes in floodlights at a car yard. The count alleged that the company failed to provide and maintain, so far as was reasonably practicable, a safe working environment.

The trial judge, Judge Pullen, described the offence by the employer as "very serious" and stated that the "culpability of the company, in my opinion is high".

Judge Pullen identified the aggravating features of the offence:

  • instructions to employees were grossly insufficient or non-existent;
  • employees were exposed to an obvious and foreseeable hazard; and
  • there were two separate contraventions represented in the one count.

Her honour noted that in Star Track there had been an express policy in existence that had not been followed. In the present case there was "minimal, if any" instruction.

In April of this year in R v DMP Poultech Judge Gullaci handed down another significant penalty for a breach of section 21 (1) of the Occupational Health and Safety Act 2004 (Vic).

In this case the company failed "to make arrangements for ensuring so far as is reasonably practicable safety and absence of risks to health in connection with the use and operation of plant and equipment." The employer was involved in the catching and transportation of live birds. The work was performed at night. When the chickens were caught they were placed in steel modules that were then placed on the back of a truck using a forklift. An employee was killed when the forklift moved one of the modules, thereby unbalancing another module, which in turn fell off the back of the truck and onto the employee.

Gullaci J found that there were aggravating factors in this offence, namely that:

  • the company was aware of the risks associated with operating at night and the practice of drivers leaving their cabins and tying up the load whilst the forklift was still operating;
  • the company was aware that the modules would at times fall off the back of trucks and that the forklift posed a risk to persons nearby;
  • a 16 year old boy who was untrained and did not have a forklift license was left to continue loading the truck without supervision;
  • the risk to any person near where the truck was being loaded was blatantly obvious and easily and cheaply able to be avoided.

Gullaci J concluded that the moral culpability of the company in this case was high. His honour also noted that the penalty imposed should reflect the substantial increase in the maximum penalty available. Despite the fact that the company no longer existed and would be unable to pay any penalty a fine of $400,000 was imposed.

The final and most recent case where a company has been sentenced for a fatality under the new penalty regime is R v Fosters Australia. On 13 April 2006 a Fosters employee was killed at the Abbotsford brewery when his neck became trapped by a heavy steel door on the B1 line depalletiser machine. The company was charged with two breaches of section 21.

The main aggravating feature of the company's offencewas that in May 2002 there had been a similar crushing incident involving the B2 line depalletiser. In response to the May 2002 accident a risk assessment was conducted and guarding was introduced to B2 line depalletiser machine. But no changes were made to the B1 machine.

Campton J reiterated the points made in earlier cases that general deterrence is to be the primary sentencing consideration and that Parliament had substantially increased the penalties available under the OHSA in order to reflect the seriousness of offending under the Act.

Campton J fined Fosters a total of $1.125 million ($562,500 on each count). Her honour indicated that but for the guilty plea the fine would have been $1.5 million ($750,000) and so from this it can be seen that a 25% discount was applied for the guilty plea.

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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