On 15 November 2024, the South Australian Employment Tribunal (SAET) fined JMA Engineering Pty Ltd (JMA Engineering) a staggering $840,000 for a Category 1 offence against section 19 of the Work Health and Safety Act 2012 (the Act).
The fine is a record amount for an offence under the South Australian work health and safety legislation and is the first ever work health and safety prosecution in South Australia where a defendant has been convicted of a Category 1 offence for 'reckless conduct'.
Investigation
In February 2021, JMA Engineering was involved in manufacturing a stainless-steel storage vessel which was suspended from an overhead crane. An apprentice was directly beneath the suspended vessel when the crane's cable failed causing the vessel to fall and tragically kill him.
A SafeWork SA investigation found that a common practice had developed in the workplace involving workers taking a short cut by moving directly under the suspended vessels, placing them directly beneath and in the path of the vessel should it fall.
The investigation revealed that JMA Engineering had neglected to undertake regular maintenance of the gantry crane.To the extent that maintenance had taken place, this derogated from the applicable codes of practice.
In the weeks leading up to the fatality, the crane's cable had sustained fraying damage which was repaired on two occasions. The site's production manager gave directions for the repairs without reference to the maintenance manager or initiating enquiries as to the cause.
Conviction and sentencing
JMA Engineering was charged with a Category 1 offence pursuant to section 19 of the Act. The production manager was also charged with a Category 2 offence pursuant to section 32 of the Act. The company and the production manager both pleaded guilty.
JMA Engineering admitted that it was reckless as to the risk of death or serious injury. The company was aware of the risk of workers moving under the suspended tanks, that the safe use of the crane was questionable and it was not routinely maintaining or servicing the cranes.
Additionally, it was found that the production manager had a significant level of authority over the production team and failed to address the unsafe system of work underpinning the site's manufacturing process and respond adequately to the identified and repeated cable fraying.
JMA Engineering and the production manager were fined $840,000 and $12,000, respectively. The Court also imposed mandatory training for all of the company's directors, managers and safety staff.
Reckless conduct
Under the Act, "reckless conduct" is classified as a Category 1 offence. The reckless conduct offence is committed when a duty holder, without reasonable excuse, engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness.
A person is reckless if the person is aware of a substantial risk that death or serious injury or illness will happen and having regard to the circumstances known to the person, it is unjustifiable to take the risk.
A category 1 offence is the most serious category and carries penalties up to $3M for a body corporate, $600,000 or 5 years imprisonment or both for an individual or officer conducting a business or undertaking.
Implications
This case sends a strong message to employers that reckless behaviour which exposes a person to a risk of death or serious injury or illness can result in significant penalties. This is particularly relevant given that it is now unlawful in South Australia to provide and/or take the benefit of a contract of insurance or an indemnity for a monetary penalty under the Act.
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.
