Worker prosecutions becoming more common under WHS laws

Over the last few months we have seen an increasing number of workers (eg, employees) being prosecuted under WHS laws across Australia, with a number of them resulting in convictions and fines.

In July 2016, a Queensland worker was convicted and fined $5000 after failing to comply with a training order issued by the Toowoomba

Magistrates Court in June 2015. The Magistrates Court issued the training order after the worker pleaded guilty to failing to comply with his duties under section 28 and 32 of the Work Health and Safety Act 2011 (Qld).

The worker's offence related to an incident in February 2013 where he fatally injured a worker when he reversed a bucket truck in the wash bay of a maintenance shed into two workers.

The worker was ordered to complete a specified training course by 31 December 2015 and a conviction was not recorded. However, in July 2016, the worker pleaded guilty to failing to undertake the training.

As a result, Magistrate Graham Lee found that because the worker did not have a reasonable excuse for failing to comply with the training order, a recorded conviction was warranted given the seriousness of the offence.

In an August 2014 case involving Mr Hoff-Higgins, a worker in Western Australia, was fined $7,200 for failing to take reasonable care of another worker who died after falling from the forklift that Mr Hoff-Higgins was operating.

Mr Hoff-Higgins was asked by the deceased worker to use his forklift to raise him in a wooden fruit bin so he could wash the roof of his truck. While the worker was washing the roof, the fruit bin slid and he fell two metres to the ground.

The WorkSafe WA Commissioner said that because Mr Hoff-Higgins held a high-risk work licence, he was a 'holder of responsibility in this situation' and that he 'should have known better than to agree to such a dangerous course of action'.

Mr Hoff-Higgins was fined nearly 40% of the maximum penalty under the Occupational Safety and Health Act 1984 (WA)

Finally, in late August 2016, another Western Australian worker was fined $6,000 and issued a spent conviction for his role in a prank that went wrong at his workplace.

The worker, Mr Browning, as a prank, sprayed a highly flammable brake cleaning chemical on the back of a colleague's white shirt while they were servicing and repairing a skid-steer loader at work. His colleague did not realise that this had been done and when he was subsequently performing welding work the chemical on his shirt ignited. He sustained serious burns to his torso.

While the Magistrates Court found that Mr Browning did not intend to seriously harm his colleague, the WorkSafe WA Commissioner said Mr Browning 'should have been aware – that [his colleague] was soon to be carrying out hot work'.

What does this mean for your organisation?

The cases above demonstrate that:

  • WHS regulators are increasingly active in prosecuting workers for their involvement in WHS incidents – this is a trend we have observed; and
  • the Courts are becoming more willing to find the worker directly responsible for their own actions, particularly in circumstances where they act in a way completely inconsistent with how they have been trained.

These cases are a good reminder of the need to ensure that your workforce has the appropriate WHS training and understand the ramifications associated with departing from your policies and procedures. It will place your organisation in a much stronger position should an incident occur as it will be harder for the WHS regulator to prove that you did not take the relevant steps, so far as is reasonably practicable, to ensure the health and safety of your workers – particularly where a worker has acted outside the boundaries of what they have been trained to do (and not to do).

Focus on shared safety obligations of labour-hire companies and host employers

Traditionally when an incident occurred involving a labour-hire worker, it was the host employer who faced the brunt of the regulatory investigation and any enforcement action that followed. This was largely because labour-hire companies do not have day to day management of the workplace where their employees are working.

However, WHS regulators across Australia are looking more closely at action against labour-hire companies for failing to ensure that their workers are provided with safe working environment (and sometimes against both the labour-hire company and the host employer). This recognises that health and safety duties cannot be delegated and that labour-hire companies share responsibility with host employers for the safety of their employees.

For example:

  • In May 2016, a Queensland labour-hire company was fined $150,000 following an incident on a South Australian construction project where a labour-hire employee was crushed by unguarded equipment (see further Boland v Fix Force (Qld) Pty Ltd [2016] SAIRC 16 (27 May 2016)). The Court made clear that labour-hire companies must conduct auditing and monitoring of host workplaces to ensure that control measures are in place to protect workers from risks.
  • In April 2016, a South Australian labour-hire company was fined $240,000 after a burn incident at a host workplace (see further Boland v Big Mars Pty Ltd [2016] SAIRC 11 (27 April 2016)). The Court emphasised that labour-hire companies cannot delegate their safety duties to host employers and have a duty to assess a host workplace before placing a worker.
  • In August 2016, a West Australian labour-hire company was fined $20,000 for failing to ensure safe working conditions at a host employer's workplace (see further prosecution of Eastlink Enterprise Pty Ltd). Although no incident occurred, it was identified that the labour-hire company failed to conduct an assessment of the host employer's safety systems, did not understand the tasks its employees were required to perform and did not communicate with employees regarding safety matters.

What does this mean for your organisation?

Given the current focus on this issue, it is timely for all labour-hire companies to ensure that they have systems in place to:

  • understand the host employer's workplace and its hazards and risks;
  • ensure that all employees are provided an induction by the host employer;
  • attend the host workplace to identify the tasks to be performed by labour-hire workers and ensure that hazard identification and risk assessment measures are in place;
  • consult, cooperate and coordinate with the host employer before and during the placement regarding the safety of labour-hire workers;
  • monitor that safety systems are in place and are complied with during the placement; and
  • communicate with employees regarding safety matters.

Having robust WHS contractual provisions is an important aspect of this.

Host employers must also be aware of the shared responsibilities and proactively raise safety issues with labour-hire companies in order to discharge their obligations to consult, cooperate and coordinate under safety laws.

Director and roofing company fined for safety breaches

A NSW company was engaged to undertake construction work on a single-story building. It had arranged for rails to be delivered and used as a safety measure to protect workers who were required to tile the roof. Although the company had arranged for the roof rails to be delivered, they did not arrive at the site. Despite not having roof rails in place, the director sent a worker and an inexperienced colleague, who was on a work trial, to work on the roof.
The inexperienced worker fell three meters from the roof onto a pallet of roof tiles. He sustained lacerations to his face and fractures to both arms.

SafeWork NSW investigated the incident and found that the safety rails could have prevented the worker's fall, but the director did not have the patience to hold off on commencing the work until the roof rails arrived.

The company was charged with breaching sections 32 (Category 2 offence) and 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act). The District Court found that the company had failed to comply with its duty to ensure, so far as is reasonably practicable, the safety of it workers, and that this failure exposed the worker to a risk of death or serious illness or injury.

The director was charged with breaching sections 32 and 28 of the WHS Act. The Court found that the director had failed to comply with his duty as a 'worker' to take reasonable care to ensure that his acts or omissions did not adversely affect the health and safety of others and that this failure exposed the worker to a risk of death or serious illness or injury.

The director and the company were fined $5,625 and $56,250 respectively.

What does this mean for your organisation?

Interestingly, the director was prosecuted as a worker, rather than an officer. This is a trend to watch.

Falls from height are a major workplace hazard, particularly in the construction industry – 2015 Safe Work Australia figures provide that falls from height are the main cause of fatalities in the construction industry. There are specific provisions in the WHS regulations governing fall prevention. Participants in industries requiring work from height should be aware of these provisions.

Summary of interesting WHS developments across Australia

The new positive obligations to be imposed on chain of responsibility parties

The Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 was introduced in mid-September 2016 aligning the Heavy Vehicle National Law (HVNL) with harmonised WHS legislation currently in place in all states and territories with the exception of Western Australia and Victoria.

Under the Bill, 'executives' will have a positive obligation to exercise due diligence to ensure that their organisation complies with its legal duty. This duty requires an executive to take reasonable steps to:

  • acquire, and keep up to date, knowledge about the safe conduct of transport activities;
  • gain an understanding of:
  • the nature of the entity's transport activities;
  • the hazards and risks, including the public risk, associated with those activities;
  • ensure the entity has, and uses, appropriate resources to eliminate or minimise those hazards and risks;
  • ensure the entity has, and implements, processes:
    • to eliminate or minimise those hazards and risks;
    • for receiving, considering, and responding in a timely way to, information about those hazards and risks and any incidents; and
    • for complying with the entity's primary duty (section 26(c)) under the HVNL.

The definition of executive under the HVNL is broader than the 'officer' definition under the harmonised WHS legislation as it extends to 'any person…who is concerned or takes part in the management of the corporation'. This means that managers who do not hold traditional 'executive' positions within an organisation may be considered to be an executive under the HVNL.

Amended codes of practice in NSW

In late September 2016, SafeWork NSW released the following six amended NSW codes of practice:

  • Hazardous manual tasks;
  • How to manage and control asbestos in the workplace;
  • How to safely remove asbestos;
  • Welding processes;
  • Managing electrical risks in the workplace; and
  • Demolition work.

The amendments are set out at the end of each code of practice and are available on SafeWork NSW's website.

WorkSafe Victoria releases proposed OHS regulations

In July 2016, WorkSafe Victoria released the Occupational Health and Safety Regulations 2017 (Regulations) for public comment.

The Regulations cover general duties under the Occupational Health and Safety Act 2004, various physical hazards, hazardous substances and materials and hazardous industries.

Victoria's existing Occupational Health and Safety Regulations 2007 are due to expire in June 2017.

Managing mental health in the workplace

We had an excellent response to our inaugural survey about managing staff with mental health issues and are delighted to share our findings in the Managing mental health in the workplace report.