Jail term (suspended) for disregarding WHS risk

In a recent Work Health and Safety (WHS) prosecution, a director (of Illawarra Enterprises (QLD) Pty Ltd) was sentenced to 4 months jail wholly suspended for a period of 12 months after a narrow earthen pathway, which a worker was walking on, gave way causing the worker to fall through an unbarricaded 1.9-metre deep trench. The worker was impaled on a steel bar and suffered severe injuries to his groin and stomach.

Investigators from Work Health and Safety Queensland found that the director was alerted to concerns raised by another worker about dangerous working conditions minutes before the incident happened. Instead of addressing the worker’s concern, the director recklessly disregarded the safety concern and allowed work to continue. WHSQ found the director guilty of a category 1 offence for exposing his worker to a risk of death or serious injury. 

Illawarra Enterprises and the site’s principal contractor (Val Eco Homes Pty Ltd) were not spared. Both were convicted and faced a fined of $300,000 (category 1 breach) and $110,000 (category 2 breach) respectively. 

Breach of a category 1 offence

A person commits a category 1 offence (of the Work Health and Safety Act 2011) when:

1. a person has a health and safety duty; and

2. the person, without reasonable excuse, engages in conduct that exposes an individual (to whom the duty is owed) to a risk of death or serious injury or illness; and

3. the person is reckless as to the risk to an individual of death or serious injury or illness.

If found guilty, a person can face a fine of up to $600,000 or a maximum of 5 years jail term. A fine of up to $3 million can apply to corporations.

What does this mean for employers?

Custodial sentences will be increasingly common now as regulators look toward pursuing harsher penalties for individuals who breach their WHS duties. The director’s sentence (above) comes days after a WHS prosecution resulted in a record 5-year jail sentence for a business owner guilty of a category 1 offence when a worker was fatally crushed by a falling generator. Even though the 5-year jail sentence was suspended, the director had to still serve a reduced 18 months of actual jail time.

WHS breaches can also lead to work stoppages, lawsuits, penalties, reputational damages, and even closure of your business, hence employers need to be proactive and be one step ahead.

Directors will likely comply with their WHS duties provided that they have taken reasonable steps to:

1. continue to assess and undertake due diligence processes;

2. allocate appropriate resources for WHS matters;

3. understand operations and the associated hazards and risks;

4. eliminate risks in the workplace, or if that is not reasonably practicable, minimise the risks so far as is reasonably practicable;

5. consult your workers about WHS (including receiving and responding to WHS incidents); and

6. cooperate and coordinate with other WHS duty holders.

Edge Legal

Relationships.  Respect.  Results