Prosecutions

Industrial manslaughter law – What you need to know

In Victoria, from July 1 this year, the consequences of a workplace fatality will become far more serious for employers who are not providing a safe workplace. This date marks the passing of the Workplace Safety Legislation Amendment Bill 2019 – Workplace Manslaughter into law.

This will bring Victoria broadly in line with industrial manslaughter legislation in Queensland and the ACT, while similar laws are mooted to follow in WA and the Northern Territory.

Senior OHS Consultant, Stephen Pehm, outlines what you need to know about this legislation as an employer or leader, along with considerations for strengthening your workplace health and safety practices.

 

An overview of the legislation

This Workplace Safety Legislation Amendment Bill 2019 – Workplace Manslaughter lists the following objects (New Part 5A Section 39a);

  • prevent workplace deaths
  • deter persons who owe certain duties under Part 3 (general duties)
  • Reflect the severity of conduct that places life at risk in the workplace.

The legislation aims to realise these objects by defining the offence of workplace manslaughter through negligence contributing to the death of another person (New Part 5A Section 39G).

 

 

The purpose of these new amendments is to hold the workplace parties with the power and resources to maintain and improve safety – namely employers and Corporate Officers – to account if a person (including a non-employee) is killed in their workplace as a result of unsafe work practices being carried out.

For a conviction to be recorded it would have to be proven that the death was directly due to the negligence of the employer or Corporate Officer in maintaining workplace safety.

Negligence is defined in section 39 (E) as “a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in.”

It would also have to be proven that the negligence occurred for a high-risk work activity which caused the harm. Note that these may include psychosocial and illness based risk related activities and may be applied retrospectively.

 

A brief overview of the penalties

Penalties for industrial manslaughter are significantly more serious than those currently in place for conviction under the Victorian OHS Act 2004 (up to five years goal and $3.2 million fine (20,000 penalty units) for a corporation ($290 thousand – 1800 penalty units – for an individual).

If you are convicted under the industrial manslaughter legislation you may be imprisoned for up to 20 years and fined $16.5 million (100,000 ‘Penalty Units’).

If charged with industrial manslaughter, a court would need to be satisfied of three factors before making a finding of guilt:

  • whether there was negligent conduct;
  • whether there was a breach of a safety duty; and
  • whether the conduct and breach lead to the death of a person.

 

OHS advice for next steps

The most effective way that an employer can avoid a prosecution under this legislation is to ensure that a safe workplace is provided for all work activities and that effective workplace safety based consultation is taking place.

 

 

For a safe workplace to be provided all high risk activities being carried out by that employer must have demonstrably effective safety controls in place to ensure that the risk of serious harm or death were minimised as far as is reasonably practicable.

Such controls would broadly include:

  • Systems of work in place that specify how work tasks are to be carried out safely;
  • training of all workers to carry out their tasks safely, follow safety rules, engage in meaningful workplace consultation about hazard control and report all safety related issues / participate in safe resolution of these issues;
  • Use of standards compliant equipment and personal protective equipment where applicable all of which is maintained as per manufacturer’s instructions;

In addition, it would have to be demonstrably clear that all workplace parties were regularly discussing emerging and existing safety related risks and monitoring the effectiveness of controls.

 

Evidence and appropriate action

Having a system in place for ensuring the outcomes above are actively being achieved with evidence gathered to prove what you are doing so is the easiest way to avoid an industrial manslaughter prosecution.

All of the above activities require all workplace stakeholders – that is, executives, managers, supervisors, and employees/contractors/visitors – to be aware of their responsibilities and carry them out effectively. In addition, evidence should be gathered and monitored to demonstrate that everything is under control and that the risk of a workplace incident is not just around the corner.

However, it can be difficult to ensure that all stakeholders have access to the data and information they need at all times. Plus keeping track of the evidence across complex workplace settings can be challenging.

 

Woman working on laptop

 

While maintaining a paper based system or similar is OK, it can be considerably easier to manage your workplace safety obligations using safety management software. For example, Safety Champion will enable much easier storage and retrieval of information and allow easier monitoring that all of the workplace stakeholders are doing what they are required to.

 

Corporate officers – personal practices

As a Corporate Officer you can best avoid a prosecution for industrial manslaughter by being actively aware of and engaged in the state of safety in your organisation.

If you cannot be confident that your organisation is actively working towards a safer workplace and no one in your organisation can show you evidence of this happening, then you are at risk of being prosecuted in the event of a workplace incident resulting in death or serious injury occurring at your workplace.

Consider these questions;

  • Do you know what is happening across your work activities from a safety perspective or who is accountable for overall implementation of the system?
  • Are you aware of how many workers have been injured, made ill or nearly been injured from workplace activities?
  • Do you know what your WorkCover premium is and how many active WorkCover claims you have?
  • Do you or a colleague at your level regularly attend consultation meetings and do you monitor their outcomes?

Being aware of information such as this can act as the ‘canary in the coal mine’. If you choose not to get up to speed on what is happening in regard to workplace safety across your organisation, or to instigate steps to implement safety, then you increase your risk of being prosecuted for industrial manslaughter should someone be killed or seriously injured by the work you carry out.

 

If you require any assistance with your OHS management system, please reach out to us. Additionally choose from our suite of upcoming training courses to boost your OHS skills, knowledge and capabilities. 

 

To learn more, seek information from your local workplace regulator or trusted legal firm, or;

WorkSafe Victoria: Victoria’s new workplace manslaughter offences

AICD: States toughen WHS laws with new industrial manslaughter offences

 

Prosecutions: 2019 Summary of VIC and NSW Data

Workplace prosecutions are something that health and safety practitioners, and business leaders should maintain current awareness of. Why? Because you have a legislative duty to acquire and keep up-to-date knowledge of work health and safety matters relevant to the nature of your operations.

In addition, the terminology reasonably practicable, means that you should consider the likelihood and degree of harm a hazard or risk could have. Whilst there may not have previously been an incident at your workplace, if a significant incident has occurred across your industry, it is something you should be aware of.

For the fifth year in a row, Action OHS Consulting has taken some time to collate and review the data available from WorkSafe Victoria and SafeWork NSW.

Used effectively, the provided information should support you to influence key stakeholders within your organisation, and assist your business to make informed decisions with respect to their health and safety program.

This article provides an overview of the prosecutions from 2015 through to the 2019 calendar years.

Prosecutions: Numbers and Related Legislation

Calendar Year 2019 saw a total of 137 prosecutions against the Victorian health and safety legislation, whilst in NSW the number of prosecutions was 37.

***Note at the time when this report was produced, zero (0) prosecution had been listed on the SafeWork NSW website – should this change, this report will be updated accordingly***

When compared to the previous year, there has been a 4% increase in Victoria and a 22% decrease in NSW. With respect to NSW, the prosecution in the current calendar year, align with the number of prosecutions in calendar year 2016 and 2017 where there were 35 and 27 prosecutions respectively.

Within Victoria:

  • 121 prosecutions were recorded against the Occupational Health and Safety Act 2004 only
  • 1 prosecution was recorded against the Occupational Health and Safety Regulations 2017 only
  • 15 prosecutions involved both the Occupational Health and Safety Act 2004 and the Occupational Health and Safety Regulations 2017
  • Unlike previous years, no prosecution involved the Dangerous Goods Legislation.

Zero prosecutions were against the 2007 version of the Occupational Health and Safety Regulations which were updated in 2017.

Within NSW:

  • 34 prosecutions were recorded against the Work Health and Safety Act 2011 only
  • 2 prosecution was recorded against the Work Health and Safety Regulation 2017 only
  • 1 prosecution involved both the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2017

Following the last prosecution against the Occupational Health and Safety Act 2000 being in 2016, and with their being no prosecutions since 2017, this signals a complete transition in NSW to prosecutions against the harmonised legislation.

Note the Occupational Health and Safety Act 2000 was superseded as of 1 January 2012.

Prosecution Timeframes

The timeframe for the prosecution’s outcomes from 2018, when measured against the date of the offence have been listed in the table below.

Table 1: Timeframe between date of offence and the prosecution outcome, for the 2018 prosecution outcomes reported by SafeWork NSW & WorkSafe Victoria. Bracketed numbers represent the increase / decrease from 2017.

Health and Safety Fines

Year on year, the average fine and median fine decreased in Victoria, and increased in NSW. In Victoria the median fine has been relatively stable over the last 5 years. The average and median fines were greater in NSW, when compared to Victoria. However, there were approximately 4 times more prosecutions in Victoria, compared to NSW.

In NSW each prosecution resulted in a monetary fine. In Victoria 124 fines were issued (91% of prosecutions).

In addition to the fines, WorkSafe Victoria issued 8 Enforceable Undertakings in 2019 which equates to 6% of prosecutions. This is compared to the 6 (7%), 7 (8%), 10 (7%) and 6 (5%) Enforceable Undertaking issued in 2015, 2016, 2017 and 2018 respectively. An enforceable undertaking is a legally binding agreement between WorkSafe Victoria and the employer. The employer is obliged to carry out the specific activities outlined in the agreed undertaking. EU’s will typically guide and direct the business being prosecuted to improve its health and safety program.

Health and Safety Fines: Maximum Issued

With respect to fines, the maximum fines for both Victoria and NSW decreased year on year.

The maximum fines issued to a business were associated with the following events:

  • Victoria: Bradken made heavy metal components by casting. The castings weighed between 200 and 270 kg and were used in mining, excavation and transport. On 22 July 2014 the castings being manufactured were end blocks for excavators. The manufacturing process commenced with moulds being formed with sand and chemically bonded to make the block. The leading hand then made a core to go inside each mould (to create cavities), and the mould was then placed on a line (like a miniature railway) to move the moulds into the furnace. Inside the furnace molten metal was heated to about 1580° Celsius. The metal was poured into each mould. Each end block casting weighted approximately 270kg at pour; the casting and mould together weighed about 800–900kg. A pneumatic arm pushed the mould along the line and the mould with the castings still inside was left for approximately two hours to cool. After about two hours, the casting was removed from the sand mould. The casting was taken to a cooling bin and the sand was removed from the area and stockpiled to be on-sold for roadmaking. At the time of the incident, the castings were moved using a skid steer loader which had been used in this procedure since its purchase in June 2012. The windscreen of the skid steer loader was fitted with 6mm toughened glass, with an industrial film placed over the outside. Mr. Watson was tasked with removing the castings from the mould and then placing the casting in the cooling bin. This process was known as “knocking out” ie knocking out the castings from the sand moulds. The process also included “knocking off” any remaining sand. The process was undertaken by an employee using the skid steer loader. The mould was tipped off the conveyor onto the concrete floor. The casting temperature was still (on average) about 580°C at this time. The tipping process usually broke the mould from around the casting; otherwise the skid steer operator was required to use the lip of the bucket to break the mould. The operator then picked up the casting using the bucket of the skid steer loader, knocked off any remaining sand, and moved the casting to the cooling bin. There were no eyewitnesses to the event which led to Mr. Watson’s death. A fellow Bradken employee saw the skid steer loader on fire about 100 metres from where he was working. When he ran over he saw Mr. Watson was seated in the cabin of the loader and the casting was resting on him. Mr. Watson was not moving and was charred by the fire. Police and paramedics attended the scene. It took a considerable time for the fire to be extinguished and the casting to cool sufficiently to allow access to Mr. Watson’s body. The cause of death was recorded as “effects of fire”.
  • NSW: On 25 October 2016, a 55-year-old carpenter suffered fatal injuries when he fell from the exposed edge of a partially constructed formwork deck under construction and was impaled through the chest on a reo bar, at Ryde. After a SafeWork NSW investigation, the defendant, Truslan Constructions Pty Ltd, was charged with a breach of section 32/19(1) of the Work Health and Safety Act 2011. On 12 July 2019, the defendant was convicted by the District Court and fined $450,000

It is not just businesses that are being prosecuted in relation to health and safety breaches

If you were of the understanding that health and safety prosecutions were limited to corporations – think again. In 2019, 13% and 19% of prosecutions were issued to workers in Victoria and NSW respectively – equating to 18 and 7 prosecutions respectively.

Prosecutions: What is the Cause and where are the Gaps?

With respect to the criteria/codes that lead to the prosecution – the criteria that was associated with 10% of the prosecutions in 2018, as defined by WorkSafe Victoria, are outlined below.

These criteria are relatively consitent since 2015. In 2019 there was an increase in “guarding-related” prosections, highlighted by the increase in “Guarding”, “Unguarded plant” along with the “Failure to provde and maintain plant”.

 “Failure to provide a safe system of work” continues to places a clear duty on all workplaces to understand their operations, the hazards associated with their work, and ensure that the established controls are implmented.

Other criteria noteworthy to report on includes reductions in prosecutions related to failure to conduct risk/hazard identification or risk assessment:

The Complimentary Support

Action OHS Consulting continues to observe a rise in inbound calls for support, associated with businesses wanting guidance, on how they can best manage their legal obligations associated with health and safety.

Action OHS Consulting is on a panel of providers endorsed by WorkSafe Victoria which provides complementary OHS Review’s for Victorian-based businesses with less than 60 workers across a period of 12-months. If you would like to find out more about this program, please contact us – Contact Us.

The Takeaway

Due diligence is all about collecting information to better understand health and safety impacts associated with a business’s operation, to allow better and more informed decisions being made.

The intention; is to protect workers, contractors, customers and visitors from harm. It is the duty that is placed on senior managers and businesses under the health and safety legislation, and their for is a duty that all businesses must be aware of.

With respect to the Health and Safety Legislation, it adopts a risk-based approach. This means that business and their senior managers are required businesses to understand and manage the hazards associated with their operations (due diligence). Put simply, this leads to a requirement for workplaces to actively:

  • Ensure that your safety program easy to access and understand, and importantly relevant to your operations. Strongly consider implementing safety software such as Safety Champion, to help ensure that scheduled tasks are completed, and that workers can easily report incidents and/or hazards. Ensuring that you have visibility and read access to this information, will assist you to proactively prevent incidents from occurring in the future.
  • List all the ways your workers could get hurt, and document what you have put in place to stop this from happening. Start by listing the “Top 5” hazards – focusing on those which could cause the most serious harm. Do this in consultation with a selection of workers who hold different roles within your business. If you identify things that you could improve and/or do better, this is not bad, in fact, it is the point of the exercise.
  • Continue to consult. Have regular structured and unstructured conversations with your team regarding the controls you have established.
  • Build competency. Ensure that you have an induction program that includes an overview of your safety program and the operational activities that the worker will undertake. Consider assigning a “buddy” to “new” and/or “young” workers.
  • Ensure your safety program is sustainable. Don’t rely on just one person. Spreadsheets and folders can be effective if you are organised, however, are difficult to maintain visibility when tasks are due – or more importantly, when tasks are missed. Software programs like Safety Champion Software will support visibility of your health and safety program, guide and remind you when deadlines and key milestones approach.
  • Considering safety when engaging contractors. Workplaces often engage contractors to support processes that the workplace is not familiar with, which often means new hazards are introduced to the workplace. Prior to engaging contractors, along with price, seek information from the contract to understand how they will help you maintain a safe working environment when they are onsite.
  • Consider safety as part of your procurement process. Before you buy anything, consider the safety implications. Don’t limit this to equipment, machinery, computers – extended this to services as well. Don’t make safety an afterthought.

We would be interested to hear your thoughts, questions or fears.

If, like us, you would like to interrogate data, we would be more than happy to share an unlocked copy of the data with you – simply Contact Us.

Prosecutions: 2018 Summary for NSW & Victoria

Workplace prosecutions are something that health and safety practitioners, and business leaders alike should maintain current awareness of. Why? Because due diligence is all about collecting information to better understand impacts to a business’s operation, to allow better and more informed decisions being made. The intention; in this instance, to prevent negative situations of the past being repeated.

For the fourth year in a row, Action OHS Consulting has taken some time to collate and review the data available from WorkSafe Victoria and SafeWork NSW. Used effectively, the provided information should support you to influence key stakeholders within your organisation, and assist your business to make informed decisions with respect to their health and safety program.

This article provides an overview of the prosecutions from 2015 through to the 2018 calendar years.

 

Prosecutions: Numbers and Related Legislation

Calendar Year 2018 saw a total of 132 prosecutions against the Victorian health and safety legislation, whilst in NSW the number of prosecutions was 48. When compared to the previous year, there has been a 26% increase in Victoria and a 71% increase in NSW. When compared to the average of the 3-years prior, there was a 40% increase in Victoria, and a 26% increase in the prosecutions that have occurred in NSW.

 

Within Victoria:

  • 124 prosecutions were recorded against the Occupational Health and Safety Act 2004
  • 4 prosecution involved both the Occupational Health and Safety Act 2004 and the Occupational Health and Safety Regulations 2007

4 prosecution involved either the: (i) Dangerous Goods (Transport by Road or Rail) Regulations 2008; (ii) Dangerous Goods Act 1985; or, (iii) Dangerous Goods Act 1985, Occupational Health and Safety Act 2004

 

While 2017 saw the introduction of the updated Occupational Health and Safety Regulations 2017; with prosecution timeframes on average over 2-years, the outcomes from prosecutions against the updated regulations are likely to become visible from 2019 and beyond.

 

Within NSW:

  • All 48 prosecutions were recorded against the Work Health and Safety Act 2011.

 

Following the last prosecution against the Occupational Health and Safety Act 2000 being in 2016, and with their being no prosecutions in 2017 or 2018, this may signal a complete transition in NSW to prosecutions against the harmonised legislation. Note the Occupational Health and Safety Act 2000 was superseded as of 1 January 2012.

 

Prosecution Timeframes

The timeframe for the prosecution’s outcomes from 2018, when measured against the date of the offence have been listed in the table below.

 

Table 1: Timeframe between date of offence and the prosecution outcome, for the 2018 prosecution outcomes reported by SafeWork NSW & WorkSafe Victoria. Bracketed numbers represent the increase / decrease from 2017.

 

When compared year-on-year, prosecution timeframes increased across all statistical definitions that were reviewed. The increased length in prosecution time will have an impact on business operations, as incident closure will be delayed. In addition to the prosecution, this is likely to impact both person- and financial resources. The reason for the increased time was not assessed.

 

Health and Safety Fines

Year on year, the average fine and median fine decreased in NSW. In Victoria only the average fine decreased, with the median fine staying at $25,000. The average and median fines were greater in NSW, when compared to Victoria. However, there were 2.5 times more prosecutions in Victoria.

In NSW each prosecution resulted in a monetary fine. In Victoria 114 fines were issued (87% of prosecutions). When considering total costs (e.g. court costs, court funds, etc.) all prosecutions against the Occupational Health and Safety Act 2004 had a financially impact.

In addition to the fines, WorkSafe Victoria issued 6 Enforceable Undertakings in 2018 which equates to 5% of prosecutions. This is compared to the 6 (7%), 7 (8%) and 10 (7%) Enforceable Undertaking issued in 2015, 2016 and 2017 respectively. An enforceable undertaking is a legally binding agreement between WorkSafe Victoria and the employer. The employer is obliged to carry out the specific activities outlined in the agreed undertaking. EU’s will typically guide and direct the business being prosecuted to improve its health and safety program.

 

Health and Safety Fines: Maximum Issued

With respect to fines, the maximum fines for both Victoria and NSW decreased year on year.

The maximum fines issued to a business were associated with the following events:

  • Victoria: The business provided high volume concrete pumping services to the construction industry. On the morning of the incident, the Operations Manager at the workplace directed employees to disassemble a concrete pumping component known as the ‘tower tube’ to enable it to be loaded by crane onto a truck for transportation (the task). The tower tube was approximately 15 metres long and was capable of being split into sections. The sections were held together with bolts. Each separate length of the tower tube weighed about two tonne. The task required loosening the bolts holding the lengths together whilst the tower was horizontal on the ground. In order to get access to certain of the bolts, the employees used a forklift to slightly elevate the tower. One employee took up position in the cabin of the forklift, whilst two others stood in front of the tower tube. The tynes were lifted and the tower tube slid off the tynes and struck one of the employees, trapping him against an adjacent brick wall. The forklift operator then repositioned the tynes to move the tower tube off the employee. The employee who was 28 years old sustained fatal crush injuries. The offender failed to provide a safe workplace in that the use of the forklift for this task was inherently dangerous given the nature of the load being lifted, and that a crane should have been used instead. The offender allowed its employees to improvise a system where it should have provided a system of work for splitting the tower tube (Charge 1). Further, it failed to provide instruction in that safe system of work and supervise its employees to ensure that a forklift was not used for the task (Charge 2). The offender pleaded guilty and was convicted and fined $250,000 in relation to charge 1 and fined $250,000 in relation to charge 2.

NSW: A worker was fatally injured when he fell 2.9 metres onto a concrete slab while installing a walking platform between roof trusses. The defendant was charged with a breach of section 32 / 19(1) of the Work Health and Safety Act 2011. On 26 March 2018, the defendant was convicted by the District Court and fined $405,000.

With respect to both prosecutions, it confirms the requirement for organisations to supervise and manage the work of their employees

 

It is not just businesses that are being prosecuted in relation to health and safety breaches

If you were of the belief that health and safety prosecutions were limited to corporations – think again. In 2018, 10% and 35% of prosecutions were issued to workers in Victoria and NSW respectively – equating to 13 and 17 prosecutions respectively. This is an increase in the distribution of worker related prosecutions from 2017. With respect to the greater prosecutions in NSW, this is likely to be associated with the explicitly defined due diligence duties placed on Officers (see Section 27-5 of Work Health and Safety Act, 2011).

 

 

An overview of the prosecutions related to workers in NSW and Victoria are as follows.

In NSW there were 17 workers prosecuted, with a maximum fine of $42,000 (in this instance the business was also fined $210,000). The prosecutions were associated with the following events:

  • A worker suffered crush injuries when the contents of a shipping container fell on him while he was unloading the container. The director defendant fined $12,500. The corporate defendant was fined $75,000.
  • A worker was injured when he was hit by a swinging branch cut from a tree causing him to fall approximately 11 metres from the roof of a house. The defendant was convicted and fined $20,000.
  • Over a 4-month period workers were exposed to a risk of serious injury in the operation of a self-contained wood-processing unit. The manufacturer’s built-in safety device had been removed and modified to permit an operator to use the handles with one hand instead of two. Those modifications were known to each of the three defendants. The defendants were convicted and the two (2) individual defendants were each fined $32,000. The corporate defendant was fined $160,000.
  • A worker was seriously injured when he fell approximately 5 meters from a roof when the temporary edge protection he leant on gave way. The director was convicted and fined $5,500. The corporate defendant was fined $75,000.
  • A 27-year old excavator operator, and a 54-year old plumber suffered serious injuries while attempting to repair a ruptured natural gas line. The plumber operated an electric jack hammer near the rupture which ignited the natural gas. The plumber was convicted and fined $2,200.
  • The defendant produced a document in complying or purportedly complying with the WHS Act and the WHS Regulation that the defendant knew to be false or misleading. The defendant was convicted fined $9,000 in total.
  • A renderer was working on a mobile scaffold when the mobile scaffold tipped and he fell approximately two metres. The defendant was convicted and fined $5,000, for not providing information pertaining to the incident. The corporate defendant was fined $20,000.
  • The defendant failed to comply with an issued Improvement Notice and as such was convicted and fined $2,000.
  • A machine operator suffered amputation of four fingers when she was using an unguarded industrial pillow filling machine. The defendant was convicted and fined $7,500, and ordered to complete 24 hours of training. The corporate defendant was fined $60,000.
  • A tree being felled at a private residence fell in an uncontrolled manner, causing significant damage to the roof and front façade of a neighbouring house. The defendant was convicted and fined $16,500.
  • An asbestos roof was water blasted as part of a painting contract at a residential property by the defendant and his brother. The water blasting contaminated the property and neighbouring properties with friable asbestos. The defendant was convicted and fined $18,000.
  • Over a 1.5 year period, a development undergoing construction had failed to address WHS issues arising from incomplete scaffolding, poor housekeeping and inadequate site security. The defendant was convicted and fined a total of $42,500. The corporate defendant was fined $210,000.
  • A worker was fatally injured when the asbestos roof sheeting of the warehouse he was working on broke, causing him to fall approximately 8.7 metres to the ground. The defendant was convicted by the District Court and fined $7,500. The corporate defendant was fined $75,000.
  • A worker fell approximately 3 metres headfirst from an unprotected edge at a construction site. The defendant was convicted and fined $24,000. The corporate defendant was fined $120,000.
  • A 25-year apprentice suffered serious injuries when he was moving a 530 kg air conditioning unit down the stairs with other workers when they lost control and the unit fell on him. The defendant was convicted and fined $7,500.
  • A worker suffered serious injuries to her hand when it became trapped in a manual cup folding machine that she was operating. The defendant was convicted and fined $25,500. The corporate defendant was fined $157,500.

This is compared to Victoria there were 13 workers prosecuted, with a maximum fine of $100,000 (in this instance the business was also fined $210,000). The prosecutions were associated with the following events:

  • The offender, a partner of a partnership which operated a residential and commercial construction business. A first-year apprentice and employee was standing on the external top plate of a partially constructed residence at a height of approximately 4.1 meters pulling up roof battens which were leaning on the wall frame. A safe work method statement had not been prepared prior to the high-risk work commencing and there was no fall protection such as a trestle scaffold in place. There was a risk of serious injury or death to employees as a result of a fall from height of more than two metres. The employee pulled up two of the roof battens at a time using both hands. The battens are about 6 m long. The employee put one down and grabbed one. He pulled it up approximately 500 mm and felt it scrape the top of the bearer and fall to the ground. The employee lost his balance and fell, landing on the bearers. The employee sustained several injuries including an L1 fracture in his back. The offender pleaded guilty and was without conviction sentenced to pay a fine of $10,000 and to pay costs of $2,512.05
  • The offender is a registered electrician. The offender was responsible for instructing a first-year electrical apprentice. On four separate occasions over an 8-month period the apprentice was tasked with work which required the isolation, disconnection and reconnection of power. This was work that should have been undertaken under direct supervision by a qualified electrician. There was a risk of death or serious injury to the first-year apprentice as a result of working unsupervised. The offender failed to take reasonable care as he did not supervise the apprentice when the apprentice was undertaking work involving isolation, disconnection and reconnection of power including power point installation, installing hardwired smoke detectors, replacing a Tastic light and repairing a hot water service. The offender pleaded guilty and was without conviction sentenced to pay a fine of $4,000 for Charge 1, $4,000 for Charge 2, $4,000 for Charge 3 and $4,000 for Charge 4 and to pay costs of $1,000.
  • The offender was the secretary, sole director and sole owner of a business who completed structural drawings for the basement excavation works for a mixed commercial and residential development. The offender was the structural engineer for the development. The structural drawings for the workplace did not require the concurrent installation of a site retention system. There was a risk to persons working inside, or working, residing or travelling in the vicinity of the excavation pit that, if the walls of the excavation collapsed, they could be seriously injured or killed by being engulfed in the collapse, or falling into the excavation pit. Sometime during the night part of the excavation collapsed in the workplace. On another night a further, and much larger, collapse occurred. In order to reduce the risk of collapse it was reasonably practicable for the offender to prepare structural drawings that required the concurrent installation of a site retention system that involved the installation of bored piers around the perimeter of the excavation before excavation commenced, the installation of rock anchors and the progressive installation of sprayed concrete infill panels until the required depth of excavation was reached. The offender pleaded guilty and was with conviction sentenced to pay a fine of $100,000.00.
  • The offender is an officer of the partnership engaged to demolish two single storey buildings at Prahran. A 55-year old employee was working as a labourer at the workplace. The offender was operating an excavator to clear the site. There was no designated walk area identified by barriers or pedestrian walkways to separate employees from the excavator when it was operating. There was a risk of serious injury or death as a result of the operating excavator colliding with employees. The employee was working behind the excavator when it started to reverse. The employee did not hear any reversing beeping noises from the excavator and yelled out to the offender when it came into contact with his leg, at which stage the excavator stopped moving. The employee received injuries to his right leg requiring surgery. The offender pleaded guilty and was without conviction sentenced to pay a fine of $5,000 and to pay costs of $3,000.
  • The offender was undertaking the building of six multi-level townhouses and was the architect, builder and owner of the project. The offender engaged contractors to perform building works at the workplace, including works in and around the internal stairwell voids of the multi-level townhouses. The offender failed to provide a proprietary scaffold system with a solid construction base and the capacity for perimeter handrails or an engineered temporary platform with a solid construction base and the capacity for handrails. The offender also failed to provide a Safe Work Method Statement (SWMS) that identified the risks of working at a height of greater than two metres and provided for suitable control measures. This created a risk to persons working in, or moving through the internal stairwell voids, that they could fall from a height that was greater than 2 metres, and that if they fell, they could be seriously injured or killed. A plastering subcontractor was standing on the temporary scaffold. The plastering subcontractor stood on the temporary scaffold for approximately 20 seconds, when it collapsed, and he fell approximately 2.5 to 3 metres to a concrete floor. The plastering subcontractor suffered a fractured heel, two compression fractures in his spine and assorted abrasions. The offender pleaded guilty and was without conviction sentenced to pay a fine of $20,000 and to pay costs of $15,064.
  • The offender was a Director of a company granted a licence as a Class B Asbestos Removalist. The company’s licence was renewed in 2007 for three years, and again in 2010 for five years, with an expiry date of 21 January 2015. In 2015 WorkSafe received an application for renewal of the licence. WorkSafe wrote to the company advising that its application for renewal had been refused and provided its reasons for this decision. It was established that following the notification by WorkSafe in 2015 that the company’s licence was not being renewed it had carried out asbestos removal work at 6 properties without being licensed to do so. The offender pleaded guilty and was without conviction, sentenced to an adjourned undertaking to be of good behaviour for 12 months and ordered to pay $3,300.00 to the Court Fund and to pay costs of $2,200.00.
  • The offender and sole director of a residential carpentry and construction company was engaged by a principal contractor to manage and undertake carpentry works at a construction site where 3 two storey units were being built. An apprentice carpenter was assisting in the installation of pre-fabricated roof trusses at a height of approximately 3 metres from the ground. The employee was working from a 200 mm aluminium plank which was positioned on two external walls. There was no passive fall prevention device in place such as scaffolding and this was attributable to the offender’s failure to take reasonable care. There was a risk of serious injury to employees as the result of a fall from height of more than two metres. The employee stepped back from the plank onto what he thought was the top plate; however, there was nothing there, and he fell backwards to the ground. The employee was diagnosed with compression fractures in L2 and L3. The offender pleaded guilty and was convicted and sentenced to pay a fine of $20,000 and to pay costs of $2,383.
  • The offender provides long haul transport services across Australia. The offender was engaged to transport mixed goods from Sydney to Melbourne. The goods contained dangerous goods. The truck was captured by CCTV approaching the Domain Tunnel eastbound. As the truck approached the tunnel, it stopped in an emergency lane. The offender exited the passenger side door and turned a “Dangerous Goods” placard around. He then re-entered the passenger side of the truck which then entered the Domain Tunnel. The offender pleaded guilty and was without conviction placed on a 12-month adjourned undertaking to be of good behaviour.
  • The offender runs a demolition business and had been engaged to demolish a single storey weatherboard dwelling. A WorkSafe Inspector attended the address and observed two persons working at the workplace. The Inspector observed asbestos containing material (ACM) had been demolished and had been placed in the back of a utility without any lining or wrapping. Broken sheets of ACM lay under the veranda. The two workers telephoned the offender who attended the workplace. The Inspector issued a cease work direction and issued a Prohibition Notice to the offender. A clearance certificate was issued that day for the removal of ACM in the utility. The Inspector re-attended the workplace and observed a licensed asbestos removalist had been engaged to complete the asbestos removal. Further asbestos was located and subsequently removed. A clearance certificate was provided. Investigation revealed that the offender had successfully completed a course in ‘Remove non-friable asbestos’; however, he did not have an asbestos removal licence. The offender pleaded guilty to one charge as a person carrying out asbestos removal work without being licensed or registered. He was sentenced, without conviction, to a 12-month adjourned undertaking and ordered to pay costs of $3,406.60.
  • The accused was a 72-year-old woman who was the owner and operator of a scrap metal business. The accused had management and control of the workplace. The workplace is a second-hand goods and scrap recycling business which is owned and operated by the accused. There was a forklift at the workplace which the accused drove. She had never held a forklift licence as required by the OHS Regulations 2007. The accused was transferring scrap metal from inside a 1.8 metre metal bin into a larger 6 metre metal bin. The deceased was positioned inside the smaller bin which had been raised to approximately 3 metres from ground level by the accused operating the forklift. The 1.8 metre scrap bin that the deceased was standing in was not secured to the forklift or the forklift tynes. The bin raised on the tynes had only one channel (instead of the required two) on its base. The bin was not engaged at all with the tyne of the forklift, including with the one available channel. No attempts were made to secure the bin to the forklift. This bin was also in very poor condition with holes and corrosion in various locations. The forklift tynes were not spread as wide as they could be and were not central on the mast of the forklift. The task was also being carried out on uneven ground with a slight incline. There was a risk of death or serious injury to persons in the vicinity of the forklift, from being struck by the object and/or forklift. Further the conduct of raising the bin containing scrap metal on the tynes of a forklift, that was not secured to the forklift with the deceased inside the bin was reckless conduct that endangered another person who was at the workplace. The risk eventuated when the deceased fell from the bin, with the bin also falling from the tynes of the forklift where the corner of the bin land on the deceased’s head killing the deceased. The offender pleaded guilty and was on charge 2 convicted and sentenced to pay a fine of $10,000 and on charge 3 convicted and sentenced to 6-months imprisonment. Costs were also ordered in the sum of $7,336.

 

 Prosecutions: What is the Cause and where are the Gaps?

With respect to the criteria/codes that lead to the prosecution – the criteria that was associated with 10% of the prosecutions in 2018, as defined by WorkSafe Victoria, are outlined below.

 

 

These criteria are relatively consistent with 2015 through to 2017. Both 2017 and 2018, have seen an increase in “construction- related” prosecutions, highlighted by the increase in “Falls/work at height offences”, “High risk construction work” along with the “Failure to prepare a SWMS”. This aligns with WorkSafe Victoria’s focus on high risk industries.

“Failure to provide a safe system of work” and “failure to provide a safe workplace” continues to places a clear duty on all workplaces to understand their operations, the hazards associated with their work, and ensure that the established controls are implemented.

Other criteria noteworthy to report on includes reductions in prosecutions related to:

  • Guarding
  • Failure to provide and maintain plant
  • Failure to notify WorkSafe Victoria of a notifiable incident

The Complimentary Support

Action OHS Consulting continues to observe a rise in inbound calls for support, associated with businesses wanting guidance, on how they can best manage their legal obligations associated with health and safety. As such, during late 2018 Action OHS Consulting developed and delivered a 4-part webinar series providing direction on this: The War on Safety. The good news is that it is free for you to download.
In addition, Action OHS Consulting is on a panel of providers endorsed by WorkSafe Victoria which provides complementary OHS Review’s for Victorian-based businesses with less than 60 workers across a period of 18-months. If you would like to find out more about this program, please contact us.

 

The Takeaway

The Health and Safety Legislation is risk-based and required businesses and their senior managers to understand and manage the hazards associated with their operations. Put simply, this leads to a requirement for workplaces to actively:

  • Assess their workplace hazards. Consider listing all the you’re your workers could get hurt, and document what you have put in place to stop this from happening. If it feels hard, try listing the “Top 5” hazards – focusing on those which could cause the most serious harm. Look to do this with several workers, across different roles within your business. If you identify things that you could improve and/or do better, this is not bad, in fact, it is the point of the exercise.
  • Establish an induction program. This may include a “buddy” being assigned to “new” and/or “young” workers. Ensure the induction includes an overview of your safety program and the operational activities that the worker will undertake.
  • Ensure your implementation is sustainable. Don’t rely on just one person. Spreadsheets and folders can be effective if you are organised, however, are difficult to maintain visibility when tasks are due – or more importantly, when tasks are missed. Web-based platforms such as Safety Champion Software will support visibility of your health and safety program, guide and remind you when deadlines and key milestones approach.
  • Considering safety when engaging contractors. Workplaces often engage contractors to support processes that the workplace is not familiar with, which often means new hazards are introduced to the workplace. Prior to engaging contractors, along with price, seek information from the contract to understand how they will help you maintain a safe working environment when they are onsite.
  • Consider safety as part of your procurement process. Before you buy anything, consider the safety implications. Don’t limit this to equipment, machinery, computers – extended this to services as well. Don’t make safety an afterthought.

We would be interested to hear your thoughts, questions or fears.

If like us, you would like to interrogate data, we would be more than happy to share an unlocked copy of the data with you – simply Contact us.

 

Prosecutions: 2017 Summary for NSW & Victoria

Let’s face it, business leaders and safety professionals all play the same game: Maximising profits, without establishing or endorsing operations that will cause harm to their workers or the public. Due diligence is about collecting information to allow informed decisions to be made. As such, workplace prosecutions are something that health and safety practitioners, and business leaders alike, should maintain currency of to identify trends and ensure past situations are not repeated.

 

For the third year in a row, Action OHS Consulting has taken some time to collate and review the data available from WorkSafe Victoria and SafeWork NSW to support you in influencing key stakeholders within your organisation and assisting your business to make informed decisions with respect to its health and safety program.

 

This article provides an overview of the prosecutions for 2015, 2016 and 2017 calendar years.

 

Prosecutions: Numbers and Related Legislation

Calendar year 2017 saw a total of 105 prosecutions against the Victorian health and safety legislation, whilst in NSW the number of prosecutions was 28. When the past three years are compared, there has been a 23% increase in Victoria. Whilst over the same period, there has been a 46% reduction in the prosecutions that have occurred in NSW.

Within Victoria:

  • 97 prosecutions were recorded against the Occupational Health and Safety Act 2004
  • 2 prosecution were recorded against the Occupational Health and Safety Regulations 2007
  • 6 prosecution involved both the Occupational Health and Safety Act 2004 and the Occupational Health and Safety Regulations 2007

Whilst 2017 saw the introduction of the updated Occupational Health and Safety Regulations 2017, with prosecution timeframes on average over 2 years, the outcomes from prosecutions against the updated regulations are likely to become visible from 2018 and beyond.

Within NSW:

  • 27 prosecutions were recorded against the Work Health and Safety Act 2011
  • 1 prosecutions was recorded against the Work Health and Safety Regulation 2011

Whilst there was one (1) prosecution against the Occupational Health and Safety Act 2000 in 2016, with the maximum timeframe for prosecution outcomes in 2017 being 3 years and 11 months – this may signal a complete transition in NSW to prosecutions against the harmonised legislation, following the 2000 Act being superseded as of 1 January 2012.

The timeframe for the prosecutions outcomes from 2017, when measured against the date of the offence, have been listed in the table below.

Table 1: Timeframe between date of offence and the prosecution outcome, for the 2017 prosecution outcomes reported by SafeWork NSW & WorkSafe Victoria.

 

Prosecutions: An Overview of the Health and Safety Fines Issued

Year on year, the average fine and median fine increased in NSW. Whilst in Victoria only the median fine increased with the average fine staying around $85,000. The average and median fines were greater in NSW.

In NSW each prosecution resulted in a monetary fine. In Victoria 88 fines were issued (83% of prosecutions). When considering total costs (e.g. court costs, court funds, etc.) all prosecutions were financially impacted.

In addition to the fines, WorkSafe Victoria issued 10 Enforceable Undertakings in 2017 which equates to 10% of prosecutions. This is compared to the 6 and 7 issued in 2015 and 2016 respectively. An Enforceable Undertaking is a legally binding agreement between WorkSafe Victoria and the employer. The employer is obliged to carry out the specific activities outlined in the agreed undertaking. EUs will typically guide and direct the business being prosecuted to improve its health and safety program.

With respect to fines, the maximum fines for both Victoria and NSW increased year on year. The maximum fines issued to a business were associated with the following events:

  • During asphalt resurfacing works, a company engaged a traffic control company to perform the traffic management operations at the workplace and a separate company to supply a sweeper vehicle and driver for the resurfacing works. A traffic management worker was struck and killed (as they were aligning bollards to separate live traffic from the resurfacing) by the sweeper vehicle when it breached the exclusion zone and reversed into him without warning – Victoria: $1,300,000.

The background: The sweeper vehicle had previously narrowly missed two workers at the workplace on two separate occasions when it breached exclusion zones without warning. The sweeper vehicle was driven in reverse in the work zone when unnecessary and persons on foot at the workplace were unaware of the movements of the sweeper vehicle. Spotters had been provided for other mobile plant operating in the area but no spotters were assigned to the sweeper vehicle. The offender’s induction to the workplace did not address the dangers posed by the sweeper vehicle reversing on a busy site and there was no Safe Work Method Statement setting out safe procedures for moving or setting up bollards. The offender also failed to supervise effectively, or at all, the operation of the sweeper vehicle and the movements of persons on foot in the vicinity of the sweeper vehicle.

The outcome: There is a requirement to supervise and manage contracted parties. In this instance, there was a risk of death or serious injury as a result of the unsafe operation of the sweeper vehicle at the workplace.

 

  • On 19 June 2014 a worker suffered serious injuries following an electric shock as a result of working in close proximity to high voltage overhead power lines – NSW: $1,000,000.

 

With respect to the Victorian prosecution, it confirms the requirement for organisations to supervise and manage the work of contracted parties, and their interactions onsite. In this case, the court found the primary contractor should have had more control over the day-to-day supervision of the work activities, and reviewed Safe Work Method Statements. The management of contractors will vary between contractor engagements, and will depend on a number of factors. One thing is certain, you must have a clear management plan. If you are not sure what this plan looks like in your organisation, this outcome suggests that you should seek advice.

 

It is not just businesses that are being prosecuted in relation to health and safety breaches

If you were of the belief that health and safety prosecutions were limited to corporations – think again. In 2017, 3% and 19% of prosecutions were issued to workers in Victoria and NSW respectively – equating to 3 and 5 prosecutions respectively. This is a reduction in the distribution of worker related prosecutions from 2016.

An overview of the prosecutions related to workers in NSW and Victoria are as follows:

In NSW there were five (5) workers prosecuted:

  • Worker suffered serious head injuries when he fell approximately 11 metres while lopping a tree – NSW: $80,000.
  • A worker was fatally injured when he came into contact with the tracks of an excavator at a waste sorting facility – NSW: $60,000. Note: The corporate defendant was fined $300,000.
  • A visitor to a residential property suffered serious burns when an explosion and fireball occurred as a result of bitumen laying works – NSW: $40,000. Note: The corporate defendant was fined $160,000.
  • A 20 year old labourer fell approximately 11 metres off a roof of a house after being hit by a swinging branch cut from a tree, suffering a fractured shoulder from the fall – NSW: $20,000.
  • A SafeWork NSW Inspector observed a worker operating a forklift without wearing a seatbelt (at Flemington Sydney Markets). The worker was issued with a Penalty Notice for failure to wear personal protective equipment (being a seatbelt) – NSW: $1,000.

This is compared to the maximum fine being issued in Victoria which was $15,000.00 plus costs of $2,000.00. In this instance the prosecution was associated with the following event:

  • A company secretary and shareholder with a 21 year old apprentice were unloading floor sheeting which had been craned onto the second floor trusses of a partially constructed apartment building. The trusses collapsed onto the first floor, with both floors collapsing to the ground. The apprentice was fatally injured. There was no safe system of work for unloading the sheeting onto the second floor trusses to determine whether those trusses were capable of bearing the load – Victoria: $180,000.
  • WorkSafe Inspectors attended a construction site and charged a self-employed builder with five offences for failing to ensure that persons were not exposed to risks to health and safety arising from his undertaking (including fall from heights, unsecured site and untested and tagged electrical equipment) – Victoria: $10,000.00 and ordered to pay costs in the amount of $2,500.00
  • An incident was reported to WorkSafe. That afternoon two Inspectors and one Investigator attended the site. During the course of their visit, the offender gave a wrong name to an Inspector, hindered an Inspector by refusing to answer relevant questions, acted in an intimidating and threatening manner by aggressively striking metal with a hammer, saying he hated them and made threats of violence, pushed an Inspector, and ordered the Inspectors to get out of the workshop. The offender was charged with offences related to assault, intimidation and hindrance/obstruction of an Inspector and providing a false name to an Inspector – $1,000.00 and ordered to pay costs of $3,038.05.

 

Prosecutions: What is the Cause and where are the Gaps?

With respect to the criteria/codes that lead to the prosecution – the criteria that was associated with 10% of the prosecutions in 2017, as defined by WorkSafe Victoria, are outlined below.

 

These criteria are consistent with 2015 and 2016, with the exception of “Failure to notify VWA of a notifiable incident” being associated with 16% of all Victorian health and safety prosecutions in 2015 and “Unguarded plant” and “Failure to conduct a risk/hazard identification” being included on this list in 2016, being aligned with 14% and 12% of all Victorian health and safety prosecutions.

The introduction of “Failure to provide a safe workplace” places a clear duty on workplaces to understand their operations, the hazards associated with their work, and ensure that the established controls are implemented. In addition, the increase in “High risk construction work” along with with “Falls/work at height offences” aligns with WorkSafe Victoria’s focus on high risk industries.

Other criteria noteworthy to report on includes:

  • “Traffic Management” as this criteria has been aligned with between 5% and 8% of prosecutions during 2015, 2016 and 2017;
  • “Failure to prepare a SWMS”, as this is new to the list in 2017 at 8%, and aligns with the increased activity in the construction space as outlined above; and
  • “Inexperienced employee” returning to the list after no being included in 2016 at 6%. This should not be limited to just “young” workers.

During 2017 and into the first-half of 2018, Action OHS Consulting did observe a rise in inbound calls for support, associated with improvement notices being issued by WorkSafe Victoria regarding these three criteria.

Failure to provide a safe system of work, safe working environment and information, instruction, training or supervision were associated with one quarter of all prosecutions. This outlines the requirement for workplaces to actively:

  • Assess their workplace risks. Consider listing all foreseeable hazards in the workplace, and document the current controls that have been established by your workplace. If “all” seems too hard, try and select the “Top 5” hazards – with respect to their potential to cause serious harm. List the controls that you have in place. Speak internally and look externally, is there anything that has been missed, or something that others do? Yes? Document the additional control strategies into an Action Plan and plan how these can be implemented into your operations.
  • Establish an induction program. This may include a “buddy” being assigned to “new” and/or “young” workers. Ensure the induction includes an overview of your safety program and the operational activities that the worker will undertake.
  • Consider safety when engaging contractors. Workplaces often engage contractors to support processes that the workplace is not familiar with, which often means new hazards are introduced to the workplace. Prior to engaging contractors, along with price, seek information from those you are about to engage to understand how they will maintain that safe working environment that you have established. Let them know what you need them to do, and ask them what they need you to do, to help them be safe while working with you.
  • Ensure your implementation is sustainable. Don’t rely on just one person. Spreadsheets and folders can be effective if you are organised, however, are difficult to maintain visibility when tasks are due – or more importantly, when tasks are missed. Web-based platforms such as Safety Champion Software will support visibility of your health and safety program, guide and remind you when deadlines and key milestones approach.
  • Consider safety as part of your procurement process. Before you buy anything, consider the safety implications. Don’t limit this to equipment, machinery, computers – extended this to services as well. Don’t make safety an afterthought.

We would be interested to hear your thoughts, questions or fears.

 

If, like us, you would like to interrogate the data on prosecutions, we would be more than happy to share an unlocked copy of the data with you – simply Contact Us. Alternatively, send an email to info@actionohs.com.au, or phone 1300 101 OHS (647) explaining you’d like a copy of the prosecutions data.