First prosecutions for category 1 WHS offences in NSW and South Australia
The NSW regulator has commenced the first category 1 (“reckless conduct”) proceedings in the State under section 31 of the NSW WHS Act. The charges were laid after a woman suffered a fatal electric shock allegedly caused by the business operator’s “non-compliant electrical work combined with the absence of critical electrical safety devices and damaged electrical plant and equipment”.
If convicted, the business operator could face a maximum penalty of $3 million and the two individuals also named could be fined up to $600,000 each and/or be jailed for up to five years. These matters are currently before the NSW District Court.
Further, an engineering company and its director were charged in 2016 with recklessly causing the death of an 8 year old girl on a ride at the Royal Adelaide Show in 2014. These are the first parties to be charged with category 1 offences under section 31 of the WHS Act in South Australia.
The respondents argued before a single Judge in the South Australian Industrial Court that their responsibilities in guaranteeing the ride’s safety ended once they physically handed over the safety certificate. The respondents argued they could only be liable for the period when the inspection was physically carried out. The Court heard it was a question of law which had not previously been considered in an Australian court.
The matter (Boland v Safe is Safe Pty Ltd & Munro) has been referred to the full South Australian Industrial Court to be heard on 24 April 2017.
It is likely that we will see further prosecutions under other provisions of the harmonised laws. This is particularly so given that 2016 saw the first conviction for breach of the consultation provisions of the model WHS Act. This involved a South Australian not-for-profit defendant who was penalised $12,000 (60% of the maximum penalty) for failing to “consult, co-operate and co-ordinate activities” with another duty holder on a construction site.
Employer criminally liable for workplace bullying under WHS laws
In light of a precedent set last year, 2017 may see further prosecutions of bullying under WHS laws.
In June 2016, a Victorian employer was convicted of a criminal offence under WHS laws over the persistent bullying of an apprentice carpenter and was fined $12,500. The WorkSafe Victoria investigation established that the employer had failed to provide a safe system of work and the necessary information, instruction, training and supervision to employees in relation to workplace bullying. The case was unusual as the employer was prosecuted under WHS laws rather than the FWC’s anti-bullying jurisdiction being utilised.
Harmonised WHS Laws in Western Australia
General industry – Work Health and Safety Regulations
On 1 June 2016, WorkSafe WA published a discussion paper outlining its 138 recommendations to adapt the model WHS regulations for general industry in Western Australia. The new regulations would replace the existing Occupational Safety and Health Regulations 1996 (WA). WorkSafe’s recommendations were summarised in our Safety Matters Alert of 25 July 2016 – “The road to harmonisation”. The period for public submissions on the discussion paper closed on 31 August 2016. WorkSafe is analysing the submissions and will prepare a report for the Minister of Commerce for consideration.
There is no fixed timeframe for adoption of the WHS laws in Western Australia. Timing will depend, in part, on the substance of the submissions received during the public comment period for the WHS regulations.
Resources industry – Work Health and Safety (Resources and Major Hazards) Bill
The Department of Mines and Petroleum is consolidating the safety and cost recovery aspects of current mining, petroleum and major hazards facilities legislation in Western Australia into one regime – the proposed Work Health Safety (Resources and Major Hazards) Act and Work Health Safety (Resources and Major Hazards) Regulations.
Public consultation on the WHS (R&MH) Bill took place throughout 2015. The period for public consultation on the WHS (R&MH) Regulations ended on 9 September 2016.
The DMP had planned for the WHS (R&MH) Bill to be introduced into Parliament in August 2016, with the legislation coming into operation on 1 July 2017. It is now anticipated that the elected Government will determine the timing for introducing any Bill into Parliament following the State election in March 2017.
Author: Ffion Whaley, Lawyer
