Prosecutions, penalties, and prison time: WHS trends for 2019

What you need to know

• The approach being taken by regulators and courts to enforcement of WHS duties underscores the importance of duty holders being diligent when discharging their work health and safety duties.
• Recommendations to amend the model WHS laws propose to further increase penalties, introduce industrial manslaughter and gross negligence offences and prohibit obtaining insurance for WHS penalties.

What you need to do

• Regularly check that PCBU WHS systems comply with WHS laws.
• Support personal duty holders, such as officers, to exercise their duties, through education and by providing appropriate and regular WHS information.
• Keep abreast of key trends in WHS laws, including the progress of the recommendations to amend the model WHS laws. If you wish to comment on those amendments, you may do so until 5 August 2019.

What developments are we seeing?

In recent years, there has been a slow but steady increase in higher category prosecutions, penalties and officer jail time for WHS breaches.

Higher category prosecutions

The harmonised WHS laws impose a three tiered category system of offences:

This year, we have seen an increase in Category 1 prosecutions.

For example, in May 2019, a site supervisor in South Australia was reportedly prosecuted and convicted of a Category 1 offence for failing to intervene in dangerous horseplay.

This follows the first successful Category 1 prosecution in Queensland in February 2019, to which we refer in more detail below, and the first successful prosecution in New South Wales in February 2018.

In the ACT, we understand that nine charges have been issued under the Work Health and Safety Act 2011 (ACT) in respect of an incident that occurred on the Canberra hospital site where a worker was killed when a mobile crane allegedly attempted to move an 11 tonne generator during construction of the hospital. It is alleged that the crane was overloaded and the crane driver overrode a warning alarm.

We understand that:

• Category 1 offences have been commenced against the corporate principal contractor, the corporate sub-contractor, the crane dogman, the site supervisor and the site safety officer;
• Two Category 2 offences have been commenced against the principal contractor's Chief Executive Officer and the sub-contractor's Managing Director and Site Manager on the day of the incident; and
• A charge of manslaughter has been issued against the crane driver under the Crimes Act 1900 (ACT).

Higher penalties for PCBUs and individuals

Over the last 18 months we have also seen a trend of higher penalties being imposed on both PCBUs and officers.

In recent months, several officers, have been sentenced to imprisonment.

• In May 2019, it was reported that an executive officer was sentenced to 18 months' imprisonment with a six month non-parole period for breaching the Mining and Quarrying Safety and Health Act 1999 (Qld) following the death of a worker who, while performing maintenance work on a crushing plant, became caught in the operating conveyor system.
• In February 2019, a director was sentenced to one year in prison, suspended after four months, for committing a category 1 offence under the Work Health and Safety Act 2011 (Qld) following the death of a worker who fell 5.9 metres after the company decided not to install safety rails on a roof. This was the first category 1 prosecution in Queensland and was discussed in a previous Safety Matters Alert. Since our alert, the director's conviction has been set aside on the basis that the judge misdirected the jury in relation to the elements of the offence. A re-trial has been ordered.
• In December 2018, a company director was sentenced to 6 months' imprisonment and fined $10,000 for breaching the Occupational Health and Safety Act 2004 (Vic) following the death of a worker who fell from a bin on a raised forklift and was then hit by the bin.

With reference to first two matters above, the PCBUs were reportedly fined $400,000 and $1 million respectively.

In May 2019, it was reported that a PCBU and its sole director were fined $1.2 million for breaching the Electrical Safety Act 2002 (Qld), following the death of a woman who was electrocuted by a submersible pump. The court reportedly heard that the PCBU imported the pump from a Chinese manufacturer and on-sold it without ensuring that it was electrically safe and met the relevant Australian Standard.

These developments demonstrate a preparedness of regulators across harmonised jurisdictions to prosecute both PCBUs and officers alike for the most serious of WHS offences and to seek the highest penalties, where the facts warrant it.

Prospect for further strengthening of WHS laws

Harmonised WHS laws could be further strengthened following the review undertaken by Marie Boland, former Executive Director of SafeWork SA, into the operation of the model WHS laws.

Ms Boland's February 2019 report into her Review sets out 34 proposed amendments to the model WHS laws. The amendments span across all areas of the model WHS laws. Some of the key recommendations are:

1. Industrial Manslaughter
   Introduce an industrial manslaughter offence, where there is gross negligence causing death. The proposed offence may be committed by either a PCBU or an officer. This follows a similar recommendation made in 2018 by a Senate inquiry into industrial deaths. The report does not propose the precise wording of the duty (and notes some of the criticisms that have been made about the Queensland industrial manslaughter offence). Instead, the report recommends the drafting be left to SafeWork Australia in consultation with legal experts.
2. "Enhance" Category 1 offence
   Amend the current Category 1 offence so that an offence is committed if a duty holder is grossly negligent in exposing an individual to a risk of serious harm or death.
   This recommendation is made to address difficulties that a prosecutor may face in proving "recklessness" (which requires the prosecution to prove intent).
3. Increase penalty levels
   Penalty levels be adjusted to reflect increases in CPI and in the value of penalty units in participating jurisdictions.
4. Prohibit insurance for WHS fines
   Make it an offence to enter into a contract of insurance or similar arrangement under which a person is covered for liability for a monetary penalty under WHS laws.

SafeWork Australia has called for anyone who wishes to submit feedback on the proposed recommendations to do so by 5 August 2019.

What does this mean?

With all of this in mind, now more than ever it is important to:

• regularly check that PCBU WHS systems comply with WHS laws, are enforced and that workers are regularly informed and trained about those systems, and any changes to them;
• support personal duty holders, such as officers, to exercise their duties, through educating them on the WHS legal framework, their role in that framework and what compliance looks like and on WHS matters relevant to your business or undertaking and the industry in which you operate; and
• keep abreast of key trends in WHS laws, including the progress of the recommendations to amend the model WHS laws.

Authors:  Julia Sutherland, Partner; Emma Chamizo, Senior Associate; and Tim Inglis, Lawyer.