With new safety laws imminent, WA records its first gross negligence workplace safety conviction
The Work Health and Safety Act 2020 (WHS Act) (passed by Parliament on 10 November 2020) will replace all current safety legislation in WA and introduces the criminal offence of industrial manslaughter into WA law for the first time.
This new offence has made some employers nervous, given the potential penalties of 20 years' imprisonment and a $10 million fine for companies. However, the same requirements for the offence of industrial manslaughter under the WHS Act (that a contravention of the Act has caused a person's death, and the offender knew that the contravention would be likely to cause the death, but acted or failed to act in disregard of that likelihood) already exists under the gross negligence provisions of the current legislation, the Occupational Safety and Health Act 1984 (OSH Act).
On 9 November 2020, Resource Recovery Solutions (RRS) was ordered by the Magistrates Court to pay $564,000 in fines and costs, the largest fine ever imposed in WA for a workplace safety breach.
Back in July, RRS became the first company to be convicted of contravening its duty under the OSH Act in circumstances of gross negligence, after a worker at RRS's waste recycling facility had his arm amputated while trying to clear debris from a moving, unguarded conveyor belt.
In handing down the sentence, the Magistrate found that RRS had no guarding around the crush points of its conveyor belts or any sort of isolation or lock-out procedures for dealing with blockages, and that workers were "left to their own devices" to find ways to clear them.
This was RRS's third serious safety incident in three years. The unguarded conveyor belts first came to the attention of WorkSafe inspectors in 2013 while they were investigating the death of a labour hire worker who was crushed when an overloaded roof panel collapsed (for which RRS was fined $85,000). At the time, RRS advised the inspectors that the plant was fully automated, so there was no risk of workers being close enough to the conveyor belts to be affected.
The second incident involved a worker's arm breaking after being dragged into an unguarded conveyor belt in 2015. This time, WorkSafe issued RRS with an improvement notice requiring it to install guarding on the conveyor belts. RRS did not install the guarding in compliance with the notice, despite informing WorkSafe that it had complied with the notice a matter of days before the third incident occurred.
RRS faced a maximum penalty of $500,000, but if the third incident had occurred after October 2018, when the penalties under the OSH Act were significantly increased to bring them in line with other jurisdictions, it would have been facing a maximum penalty of $2.7 million. RRS's director has also been charged with gross negligence (with the case still pending) and is the first person in WA to potentially face a jail sentence in relation to a workplace accident.
What does this mean?
RRS's record-setting fine shows that when a serious safety incident occurs, the regulator can and will lay charges and seek the maximum penalty available. Additionally, courts are increasingly willing to impose harsher sentences that send a clear message to businesses that safety obligations must be taken seriously. This is particularly significant, now that potential penalties are in the millions, and in the case of industrial manslaughter under the WHS Act, can result in individuals looking at up to 20 years in prison.
While RRS's penalty is at the high end of what was applicable at the time of the accident, other companies currently facing gross negligence charges may not get off so lightly. A plumbing company charged with gross negligence after an employee drowned in 2018 when a water main burst, filling the trench he was working in, will be subject to the revised maximum penalty of $2.7 million.
With the increased penalties under the OSH Act and the pending introduction of the WHS Act, a workplace accident which results in a prosecution can be potentially devastating for a business, not only in terms of dealing with the death or serious injury of a worker, but also financially and in relation to reputational damage. Given that the WHS Act will introduce new duties and obligations not seen before in WA (including a personal duty imposed on company officers), it is highly recommended that businesses start self-auditing now and seek advice to ensure that the safety management systems they have in place are compliant with the new requirements.
For further information, please contact the authors of this briefing;
T +61 (0)8 9422 4723
Senior Associate, Perth
T +61 (0)8 9422 4724