A prison sentence recently handed down to a company director in the Magistrates Court serves as a timely reminder that regulators are willing to seek, and courts are increasingly willing to impose, tougher sentences on businesses that fail to meet their duties under workplace health and safety legislation. With the imminent introduction of an even tougher penalty regime in Western Australia, the sentence of imprisonment should encourage all company directors and businesses to take every opportunity to ensure their work health and safety practices are at best practice levels.
In 2020, a young employee was killed at work while he was installing roof sheets on a large industrial style shed in Esperance, Western Australia.
The worker was fatally injured when strong winds caused him to fall approximately nine metres from the shed roof. A colleague of the deceased worker also fell from the roof and sustained multiple serious injuries.
The owner and director of the shed building company that employed the worker was subsequently charged with several offences under the Occupational Safety and Health Act 1984 (WA) (OSH Act), and entered a guilty plea in respect of seven separate charges, including gross negligence. In pleading guilty to the gross negligence offence, the director effectively conceded that the occurrence of the incident could be attributed to his personal neglect as a director.
The Esperance Magistrates Court found on 24 May 2021 that the employer had failed in its duty to provide a safe workplace for its employees. Amongst other failings by the employer, the Court found that:
- the employer had permitted the deceased worker to undertake construction work, despite the worker not having completed the relevant certificate that would have enabled him to complete such work;
- the employer allowed work to be carried out by both employees, despite neither employee holding a High Risk Work Licence; and
- there was no appropriate protection in place to prevent workers from falling from heights.
The Court imposed a prison sentence of two years and two months on the director. The sentence of imprisonment is a significant event in the context of current reforms to workplace health and safety laws in WA, as this is the first occasion where a director has been jailed under the OSH Act for the gross negligence offence.
The business was fined $550,000 in respect of the charge of gross negligence, and received fines of $55,000 for breaches of the Occupational Safety and Health Regulations 1996.
Western Australia’s workplace safety laws
Workplace health and safety laws in WA are currently undergoing significant reform, with the Workplace Health and Safety Act 2020 (WA) (WHS Act) passed by the WA Parliament in November 2020. When the WHS Act comes into effect, it will replace the existing OSH Act and Mines Safety and Inspection Act, and bring WA into line with most states and territories, that have already implemented the ‘Model WHS Law’. The WA Government anticipates that the new regime will be in force by January 2022, when the accompanying (and very detailed) work health and safety regulations are finalised.
The new laws will replace the existing penalty regime (which applied in the case discussed in this article), and impose a further increase in workplace penalties, as well as new Industrial Manslaughter offences with significant penalties. In particular, Industrial Manslaughter offences will carry a maximum penalty of up to 20 years’ imprisonment or a fine of $5 million for an individual. The maximum penalty for a body corporate for the offence of Industrial Manslaughter will be $10 million.
These reforms echo community expectations that businesses will be held accountable for the health and safety of their workers, and that businesses must take proactive steps to ensure they provide a safe work environment.
Businesses should act now to audit the safety and risk management controls, culture and practices they currently have in place, and ensure these are sufficient to meet their obligations under the new WHS Act prior to the new regime coming into effect.
Read more Mining Safety News
This article first appeared at Corrs Chambers Westgarth
 Victoria is the only state that has not done so.
 Ben Harvey, ‘Workplace deaths: The raw pain of a WA mum who lost her son, and the long fight for justice’, The West Australian (online, 2 May 2021).