The director of Steelcon Construction Pty, a New Zealand construction company, was sentenced in March to four months' home detention after a worker died when a freshly dug trench collapsed on him at a worksite.

An investigation performed by WorkSafe New Zealand found the company failed to shore up the trench with appropriate panels, and failed to cut the trench with sloping rather than vertical slides to ensure the face remained stable. The Company also failed to conduct a geotechnical assessment of the soil stability prior to starting work.

While the imprisonment of officers in Australia under the WHS legislation is rare, there have been a handful of cases where a prison sentence has been handed down by the courts. For example, in February 2015, a director of a scaffolding company received a 12-month suspended jail sentence (and a recorded conviction) in Queensland after two of the company's workers plunged to their deaths from a high-rise complex after the rigging detached from the swing stage scaffold in which they were located. The director had disregarded engineering instructions relating to how the swing stage rigging was to be erected and also failed to follow relevant Australian Standards. This resulted in the swing stage being erected in a grossly 'negligent' manner.

In South Australia in 2015, the director of a transport company was imprisoned for 12 years and 6 months, with a non-parole period of 10 years, for the manslaughter of his employee. The employee was driving a company owned truck when the brakes failed and he had to veer onto the gravel shoulder to avoid colliding with a small car. The truck hit a pole and the driver was killed.

The truck's brakes were found to be in total disrepair and had very little braking capacity for several weeks.

In his sentencing remarks, Justice Peek told the director that 'it should have been entirely obvious to you, particularly after the [near miss} ... that your conduct in not maintaining the truck's braking system could easily lead to the death of not just one person, but multiple persons'.

What does this mean for officers?

After an initial lag period following the introduction of the harmonised WHS legislation, we are seeing more prosecutions against officers for their failure to exercise due diligence.

Although jail sentences have been fairly limited in Australia to date, the cases referred to above clearly demonstrate there is an appetite to hold officers accountable for their role in serious WHS incidents.

To limit potential exposure to prosecutions under WHS legislation, officers need to be on top of, and fully understand, what is involved in exercising due diligence. The following are examples of how this obligation can be discharged:

  • attending and participating in regular WHS briefings where WHS legislation and case updates, the organisation's key WHS risks and hazards, and WHS performance are discussed;
  • performing regular site visits to get a hands-on understanding of the organisation's key risks and hazards;
  • understanding where concurrent WHS duties apply with third parties (eg, with suppliers and distributors) and what WHS risks are associated with the organisation's interaction with these third parties;
  • ensuring the organisation's safety management system is audited annually against the applicable WHS laws – and ideally against the Australian Standard for WHS systems (currently AS/NZS 4801 Occupational Health and Safety Management Systems);
  • considering incident, hazard and risk data and audit reports filtered up to officers through the organisation's safety governance framework, and actively questioning any data that doesn't look right; and
  • regularly reviewing WHS resourcing at the organisation, and considering WHS implications associated with any proposed budget cuts.