Australia: First 'officer' charged under harmonised work health and safety legislation: A timely reminder to officers and employers

Last month, the Australian Capital Territory became the first jurisdiction to charge an 'officer' under the harmonised work health and safety (WHS) legislation.

The senior manager of a construction company was charged with a category two offence for failing to comply with their health and safety duties which exposed an individual to the risk of death and serious injury, following the fatality of a tip truck driver. If found guilty, the manager could be personally liable for a penalty of up to $300,000.

This development, along with the recent separate decision of the Northern Territory Supreme Court in the matter of Damday Pty Ltd v Work Health Authority [2014] NTSC 7, serve as a timely reminder to officers and employers of their health and safety obligations, and the importance of conducting regular risk assessments and ensuring adequate supervision and training is provided to all workers.

Officer duties

An officer, under the harmonised WHS legislation, has a duty to exercise due diligence to ensure the relevant person conducting the business or undertaking (PCBU) complies with their statutory WHS duties. It is important for businesses to identify those people that are 'officers' under the harmonised WHS legislation, to ensure they are able to adequately discharge their obligations. For more information on who is an 'officer', please see our previous article.

Two of the key obligations imposed on officers include ensuring regular risk assessments are conducted by the business to identify and manage the business, and ensuring that adequate supervision and training is available to all workers and officers.

Damday case

The Damday case involved an appeal by Damday Pty Ltd (Employer), who were convicted and fined $120,000 after entering a guilty plea to the charge of failing to ensure the health and safety of its workers and other persons in the conduct of its business.

As part of its air-conditioning business, the Employer had five vehicles (four vans and one utility) which employees used in the course of their employment, and which they were permitted to keep at their homes overnight. The Employer's usual practice was to use the utility to transport large flammable gas cylinders to job sites. However, in December 2011, the utility broke down and was off the road for several days. During this period, the large gas cylinders were transported using the four vans, which had limited ventilation.

On 14 December 2011, a worker secured one of the vans at his home overnight. The van stored several large cylinders of extremely flammable gas. During the night, some of the gas escaped into the interior of the van. When the worker unlocked the van the following morning, a spark ignited in the door locking mechanism and the van exploded. The worker was killed, and several surrounding houses were damaged.

During Northern Territory WorkSafe's investigation, it was revealed that:

• the Employer's Safe Work Method Statement (SWMS) failed to identify the need for adequate ventilation when storing or transporting flammable gas in a vehicle
• workers were not made aware of, or trained in relation to, the SWMS prior to the incident, and
• the Employer had failed to implement reasonably practicable measures to eliminate or minimise the risks associated with poorly ventilated vehicles.

Decision at first instance

The Sentencing Magistrate held that the Employer failed to ensure, as far as reasonably practicable, that workers and other persons would not be exposed to health and safety risks. It was held that the Employer could have reasonably foreseen the occurrence of the incident and the associated risk to the health and safety of its workers. The Sentencing Magistrate further cited general deterrence as a paramount consideration for the court, and ordered that the Employer pay a fine of $120,000.

Appeal

The Employer appealed the Magistrate's decision, arguing that the penalty was manifestly excessive and did not take into account the Employer's early plea of guilty.

Justice Southwood upheld the Magistrates decision, finding that the fine was appropriate because general deterrence is a paramount consideration when determining the appropriate penalties for work safety offences. His Honour held that courts are able to give significantly more weight to general deterrence when the risk and extent of harm is considerably high.

Lessons to be learnt

Businesses, and their officers, need to remain vigilant to ensure that they are complying with their health and safety obligations. In particular, the Damday case emphasises the importance of conducting regular risk assessments and ensuring that appropriate measures are implemented to eliminate or minimise the risk of safety incidents.

Businesses and officers should ensure that:

• workers are adequately trained and supervised and provided with appropriate personal protective equipment
• workers are consulted about decisions that will affect safety in the workplace
• work health and safety procedures are regularly reviewed to ensure continued compliance with safety obligations.

All officers should also have an up-to-date knowledge of applicable work health and safety legislation and codes of practice, and how they apply to the operations of the business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.