A case recently heard in the Industrial Court of New South Wales demonstrates the Court's willingness to impose severe penalties for blatant breaches of safe work methods.
In Inspector Hall v BU Hazardous Material Removal and Demolition Pty Ltd and Ung, the company ("BU") and its sole director, Mr Ung, were charged with breaching section 8(1) of the Occupational Health and Safety Act 2000 by failing to ensure the health, safety and welfare of its employees at work.
The charge arose from an incident where a new employee, working unharnessed on a roof, fell approximately eight metres to the ground, suffering serious injuries.
Whilst BU had a Safe Work Method Statement ("SWMS") in place for this particular job, it had been "breached in the clearest possible terms". BU's failure to comply with the SWMS included knowingly failing to provide enough fall arrest devices for the employees working on the roof, failing to instruct the injured employee on the use of the fall restraint system and general safety methods and failing to ensure that there was adequate supervision of the employees working at heights.
The Court found Mr Ung culpable as he was physically present at the time of the incident and knew that there were insufficient safety harnesses for those working on the roof. The Court also noted that, whether or not he was actually present, as a Director of a corporation he would be taken under section 26 of the Act to be guilty of the same offence as that committed by the corporation.
The Court held that the circumstances of this case were such that the defendants had "knowingly and deliberately disregarded the requirement [to provide a safety harness] and knowingly exposed [the injured man] to a most serious risk of injury in all of the circumstances in which the work was being carried out". It imposed a penalty of $300,000 on BU and $30,000 on Mr Ung personally.
What would have happened if the worker had died?
S. 32A of the NSW Act would in those circumstances allow a charge of reckless conduct causing death at a workplace by a person with OHS duties. The maximum penalty for a corporation would be $1,650,000 and for an individual $165,000 or imprisonment for 5 years, or both.
And what if the incident occurred in WA?
The offender would probably be charged under s 19A (1) of the equivalent WA legislation (Occupational Health and Safety Act 1984 (WA)), for gross negligence i.e. knowing that the breach would be likely to cause death or serious harm but nonetheless taking the risk. The maximum individual penalty for a first offence is $250,000 and imprisonment for 2 years, and for a body corporate, for a first offence, a fine of $500,000. The penalty would apply regardless of whether the injured man died or survived the incident.
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