Occupational health and safety
OFFICER PROSECUTIONS AND THE FIRST GAOL SENTENCES FOR HEALTH AND SAFETY OFFENCES 2018 saw the first instances of Australian courts handing down gaol sentences under Australian health and safety laws, with the first officer sent to gaol for a Category 1 officer prosecution. In Victoria, Maria Jackson was sentenced to 6 months’ goal for her role as the manager and controller of a scrap metal business following the death of a worker when the bin he was standing in, elevated on a forklift, fell and crushed him. That forklift was operated by Ms Jackson (unsafely) and in circumstances where Ms Jackson did not hold a forklift licence. Jackson’s case demonstrates that courts will consider gaol sentences for reckless conduct endangering safety. In Queensland, sole director Gary Lavin was sentenced to 12 months’ gaol (suspended after 4 months) for a breach of the officer due diligence obligation in relation to his decision making on safety which led to the death of a worker when he fell 6 metres following the failure to install necessary edge protection at a construction site. Lavin decided not to install edge protection on a roofing job to cut costs in the work. Lavin’s case at first instance was a demonstration of a long standing principle that the cost of safety measures is not a reasonable excuse for failing to implement mandatory controls for significant and well known safety risks. However, this conviction was overturned in May 2019 following a
finding by the Court of Appeal that the jury was misdirected as to the elements of the Category 1 offence. With the Court of Appeal providing further guidance on the meaning of ‘reasonable excuse’, and a retrial ordered (a date is expected to be set down on 19 September 2019), duty holders should pay close attention to future developments. There were a total of 20 completed and published prosecutions of officers in 2018. The highest penalty against an officer was AUD 102,500 in the Western Australian case against Ryan Wayne Franceschi who was the director of a construction business. prosecutions of workers in 2018 were commensurate with the cases completed in 2017 (9 completed prosecutions in 2018 compared to 8 completed prosecutions in 2017). There were 9 completed and published worker prosecutions. The majority of these prosecutions were commenced in Queensland with 5 worker prosecutions, followed by New South Wales with 2 and 1 each in Victoria and Western Australia. There were a total of AUD 118,600 in penalties against individual workers with the highest penalty imposed on a worker being AUD 48,000 in Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27. WORKER PROSECUTIONS It appears we have a ‘new normal’ with the trend of worker health and safety prosecutions continuing. Personal
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