Murray Thornhill, Director and Gemma Wheeler-Carver, Associate in our Employment and Dispute Resolution teams discuss how the recent sentencing of an Esperance small business and its sole director provides a timely reminder of the importance of ensuring compliance with workplace health and safety obligations.
In a first in Western Australia, Mark Thomas Withers (sole director of MT Sheds) has been sentenced to 2 years and 2 months imprisonment (with 8 months to be served immediately and the remainder suspended for 12 months) under the Occupational Safety and Health Act 1984 (WA), in relation to a charge of the company’s gross negligence with his consent or due to his neglect.
This relates to an incident in March 2020 when a young worker was killed and another seriously injured when they were hit by strong winds while working on a roof near Esperance. It was alleged that on the day of the incident, the two workers were installing roof sheets on a shed they were constructing on a farm for agricultural purposes without appropriate safety control measures in place. In addition, the employees were allowed to work without High Risk Work Licences and the deceased employee did not hold a white card (Construction Induction Training Certificate).
Mr Withers was also fined $55,000 for this and other breaches, and his company (MT Sheds) was fined $550,000. These fines are lower than the maximum fines faced under the current legislation, being up to $2.7 million for a company and a maximum of $550,000 and five years’ imprisonment for an individual.
Two weeks ago, building company Gran Designs WA Pty Ltd was fined a total of $175,000 in relation to charges including failure to provide and maintain a safe workplace causing death, not having a Safety Management Plan, and workers not holding High Risk Work Licences. These charges related to the death of a contract worker in 2017 in Yarloop, as a result of the falling of an unrestrained concrete panel.
Although these charges are under the current legislation, it is an important reminder of the seriousness with which these matters are treated, which will only increase when the new Work Health and Safety Act 2020 (WA) commences later this year.
The Work Health and Safety Act 2020 was passed in November 2020 following substantial debate about its terms. The majority of the legislation has not yet commenced however these sections will commence immediately upon the subsidiary regulations being made. Once in effect, the legislation will provide for:
- a primary duty of care requiring persons conducting a business or undertaking (known as PCBUs) to, so far as is reasonably practicable, eliminate (or minimise if not reasonably practicable to minimise) risks to the health and safety of workers and others who may be affected by the carrying out of work. PCBU’s can include individuals and body corporates;
- duties of care for persons who influence the way work is carried out, including the providers of workplace health and safety services;
- responsibilities on workers and other persons at a workplace to take reasonable care for their own and others health and safety;
- a requirement that ‘officers’ of the corporation (including directors, secretaries, and key decision-makers) exercise ‘due diligence’ to ensure compliance;
- reporting requirements for ‘notifiable incidents’ (serious illness, injury or death, and dangerous incidents);
- provision for the resolution of workplace health and safety issues;
- protection against discrimination for whistle-blowers.
As with the previous legislation, the regulator will have substantial powers to require production of documents or information, rights of entry and the ability to require questions to be answered (even where they may be self-incriminating).
This legislation introduces the offence of industrial manslaughter, with maximum penalties of $5 million and 20 years imprisonment for individuals and $10 million for companies. Other offences related to serious harm or death to workers, exposure to risk and failure to comply with duties are also introduced, with maximum penalties of 5 years imprisonment and $680,000 for individuals and $5.5 million for companies.
Importantly, the legislation introduces a prohibition against insurance against fines imposed or contracting out of (shifting) obligations.
Who does the legislation affect?
The legislation applies to all workplaces in Australia, with a few exceptions including solely volunteer organisations. Those responsible for workplace health and safety in a particular workplace are not just those who own or run the company, but those who design, manufacture, import, supply, install, construct or are in control of fixtures, fittings and plant in a workplace. It also applies to those who provide workplace health and safety advice to a workplace (with exceptions for advice protected by legal professional privilege). It also makes officers of a company responsible for certain matters including exercising due diligence to ensure that the company complies with its duties and obligations.
It is important to note that more than one person or company may be responsible for a particular obligation or duty and liable for any breaches of that duty.
Is there anything businesses can do to protect themselves?
We recommend that all business take steps to protect themselves in preparation for the new legislation, including:
- Identify your duties under the new legislation, including those you owe to other workplaces, subsidiaries, partnerships, etc.
- Undertake a risk audit of your workplace, including any required authorisations, licensing, training
- Consult with your employees (and ensure you have in place any requested Health and Safety Representatives, work groups or committees)
- Determine if you require any advice on your obligations or risk management processes
- Update your policies and procedures and ensure all employees are trained adequately
- Set up good record-keeping – you will need to record any notifiable incidents, lists of Health and Safety Reps anyway and having a record of your audits, polices, consultation and training will all be useful in demonstrating that any injury, harm or death was not caused by you
HHG Legal Group can assist with legal advice on your obligations, preparation of policies and procedures, and representation in relation to workplace investigations and/or prosecutions.