All jurisdictions (except Western Australian and Victoria) have adopted harmonised work health and safety legislation over the past five years. Under the Work Health and Safety Act 2011 (Cth) (‘WHSA’), recent decisions indicate courts are now more willing to impose higher range penalties for Workplace Health and Safety (‘WHS’) breaches.
At present, these harmonised WHS legislation penalties come under three categories:
- Category One involves recklessly exposing an individual to risk of death or serious injury or illness, facing up to a $3 million penalty for corporations or $600,000 and five years imprisonment for officers.
- Category Two entails exposing individuals to risk of death or serious injury or illness, with corporations subject to a maximum $1.5 million of penalty or $300,000 for officers.
- Category Three is brought about where there has been failure to comply with Health and Safety duty, and involves a maximum $500,000 penalty for corporations and $100,000 for officers.
Large penalties imposed by State Courts
On 19 April 2017, the South Australia District Court handed down its largest penalty to date of $650,000 under the WHSA. In this case, the employer was charged with a Category two breach, even though the employee only suffered a wrist sprain as a result from the incident. The case involved an employee undertaking a new chemical waste product test process whom had been incorrectly advised regarding the temperature of the product during the distillation process. In opening the release valve, an explosive rush of air resulted and covered another employee in undistilled material.
In awarding the penalty, her Honour took into account: the aggravating factor of foreseeable risk of injury, inadequate response undertaken for a foreseen risk, systematic failure of employer to address the foreseeable risk, the potential of death or serious injury that may have manifested, neglect of well-known precautions to deal with significant risk of injury leading, prior contraventions by the defendant of Cth WHS legislation and prior instances of a similar incident.
New South Wales
On 5 May 2017, NSW handed down its largest penalty of $1 million under WHSA, where the employer was convicted of a category two offence. The case involved the company’s blatant disregard for safety obligations when instructing a subcontractor to install angles on a window knowing the scaffolding outside could not be used without a person coming within three metres of high voltage power lines. In carrying out instructions, the worker then suffered severe electric shock and burns to 30% of his body when the angle being held by him came into contact with power lines.
In handing down the fine, His Honour took into account the factors such as: the risk was known to workers and had a high likelihood of occurring if control measures were not adopted, the risk likelihood was increased when handling tools within close proximity of power lines, the defendants knowledge of the risk, the gravity of significant risk including death, prior prohibitions by defendant on the same subject matter, the knowledge by the defendant of the task content and requirement of steps to eliminate and avoid risk with no steps undertaken to do so.
What does this mean for Queensland claimants?
The Queensland Government has recently announced a best practice review of Workplace Health and Safety Queensland in April 2017 and introduced a new criminal WHS offence of ‘negligence causing death’ in May 2017.
With the penalty increase handed down interstate, it is anticipated that prosecutions will rise and the court may become more willing to consider larger penalties when faced with serious breaches.
This serves as a reminder to duty holders that serious charges could be brought against them if they fail to take proactive steps to ensure health and safety of workers and can resulting in serious penalties.