Australia: Work Health and Safety - Director due diligence

Last Updated: 8 July 2019
Article by Greg McCann

WORK HEALTH AND SAFETY - SECTION 27/31

Officer found guilty, released on Appeal

In a recent decision of the Queensland Court of Appeal, Gary Lavin, a sole director of Multi-Run Roofing Pty Ltd, had his conviction and sentence of 12 months imprisonment overturned.

Mr Lavin and his company had been convicted by a jury in the Maroochydore District Court on the 6 February 2019 for a breach of section 31 of the Work Health and Safety (WHS) Act of Queensland. The company was fined $1M.

Facts

On the 29 July 2014, an employee of Mr Lavin's company was working on a roof when he has walked over to the edge, tripped and fallen approximately six metres to the ground below suffering fatal injuries. The contract for the roofing work included the installation of edge protection for workers on the roof.

However, Mr Lavin's company did not erect edge protection but provided a system of using a scissor lift to provide edge protection together with the use of harnesses and lanyards. At the time of the incident, the worker was not wearing a harness and the scissor lift was not located in the fall area.

Criminal Charges

Indictments, alleging a breach of section 31 of the WHS Act were also presented to the jury against the company that subcontracted to Mr Lavin's company for the work, Lavin Constructions Pty Ltd and its sole director, Peter Lavin. The jury could not return a verdict on the co-accused.

Court of Appeal finds misdirection to the jury

The court of Appeal determined that the trial judge had misdirected the jury as to the reasonable excuse that Mr Lavin was entitled.

In determining whether there was a reasonable excuse, the court held:

"The jury was obliged to consider the alternative measures which the appellant directed to be put in place (the harnesses and the use of the scissor lifts), not just whether it was reasonably practicable to install railing."

And further, the court stated:

"Reasonable excuse also raises consideration not only of what measures were put in place but also what measures the appellant believed had been put in place. His belief is relevant to the reasonableness of any excuse."

The court of appeal then held that the real question to be determined was that following Mr Lavin directing the workers to use harnesses if working near the edge and to position the scissor lift so that it constitutes a barrier, having given those directions and in the context of other relevant evidence in the case, whether he had a reasonable excuse for not causing his company to erect the railing.

Mr Lavin's conviction was then set aside and a retrial ordered.

Commentary

The Court of Appeal stated that the belief of the Officer as to the work being undertaken by his company and its workers, is relevant to the Officers' compliance with section 27 of the WHS Act.

This belief, however, is to be considered with other relevant evidence in the case. This will, therefore require each officer, to consider, objectively, if their business is compliant with current work safety practices that meet community expectations. Ensuring the business has a safety management system that meets the compliance standards is one step towards freedom.

NSW District Court - Officer charge to stand

In a recent decision from the District Court of NSW an officer of Hetherington Plumbing Services Pty Ltd has been required to answer a charge that he, as an Officer, breached section 27 of the WHS Act for an incident in 2016 where workers, on a roof, were wearing safety harnesses that were not attached, when a worker fell through the roof sheeting. The court noted that it was the submission of the prosecution (Safework NSW), that:

"The failures of the PCBU and an Officer amounting to breach may be the same or overlap."

The Court held that an Officer is required to adhere to a minimum standard of behaviour involving a system which ensures compliance by the PCBU with its duties and obligations under the WHS Act. The court held:

"The minimal standard of behaviour and the system is to take reasonable steps to include the objectives in section 27(5)(a) to (f)."

In conclusion, the court noted that although parts (a) to (f) of section 27(5) are not exhaustive, any other relevant matters must in some way relate to the system implemented and be enforced by an Officer to ensure compliance by the PCBU.

Brisbane Magistrates Court Orders Company Director to 12 months Imprisonment

In a recent decision of the Brisbane Magistrates Court, an executive officer of MCG Quarries Pty Ltd has been convicted of breaching the mining safety legislation in Queensland and sentenced to 18 months imprisonment with a non-parole period of six months. The officer has filed an appeal.

The prosecutions, against MCG Quarries and two of its executives arose from the death of a 21 year old worker who received fatal injuries whilst working on an unguarded conveyor at South Moranbah in June 2012.

MCG Quarries (in liquidation) was fined $400,000 and the other executive fined $35,000.

Recommendations

It is recommended that Officers of corporations consider the following steps to ensure they are in the best position to avoid facing criminal charges in Court:

  1. Recommend that the PCBU undertake a compliance check of its safety management system
  2. Ensure that a WHS Officers Due Diligence system is in place and operating
  3. The executives of the PCBU undertake critical incident response training.

Greg McCann
Work health and safety
Colin Biggers & Paisley

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 Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions