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ORGANISATIONAL PROSECUTIONS
The instruction to the employee was found to be reckless and it was reasonably practicable for Cudal to implement steps to eliminate or minimise the risks to workers, which they failed to do. Cudal pleaded guilty to the Category 1 offence in respect of breaching section 19(2) (the primary duty of care to other persons) of the Work Health and Safety Act 2011 (NSW). That first successful Category 1 prosecution has been followed by a further February 2019 successful Category 1 prosecution of Multi-Run Roofing Pty Ltd in Queensland (where a AUD 1 million penalty was imposed) in relation to the same incident that led to the Gary Lavin gaol sentence discussed above. Enforceable undertakings ( EUs ) continue to be popular alternatives for organisations seeking to avoid criminal convictions. In 2018, a total of 23 EUs were accepted in Australia with a total value of actions under those undertakings amounting to AUD 17,061,911. This accounts for a 119% increase in the total cost of EU initiatives to businesses compared to 2017. The average value of enforceable undertakings in 2018 increased more than twofold from 2017. The average value in 2018 rose to AUD 1.8 million compared with AUD 800,000 in 2017. 2018 also saw the most expensive EU ever entered in Australia. The ACT Department of Education and Training committed to provideAUD10million inhealthand safety initiatives in and EU with WorkSafe ACT. ENFORCEABLE UNDERTAKINGS
While the level of penalties against organisations in 2018 was lower than 2017, the trend towards increasing penalties against organisations also continued. While the largest penalty awarded in 2017 was the record of AUD 1,300,000 against Downer EDI Works Pty Ltd, 2018 still saw a substantial penalty awarded in NSW against Cudal Lime Products Pty Ltd (Cudal). Cudal received a penalty of AUD 900,000 in Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27. This was after the application of a 25% discount due to an early guilty plea. The next highest penalty was AUD 500,000 in Victoria against Specialised Concrete Pumping Victoria Pty Ltd which involved a falling object in the construction industry. Significantly, Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27 also represented the first successful Category 1 prosecution in any model WHS laws jurisdiction since the introduction of the WHS laws in 2012. Cudal operated an open-cut mine which had suffered a number of electrical faults resulting in notices being issued in 2007, 2009 and 2013 in respect of electricalmaintenance issues. In an attempt to save costs, Cudal instructed an employee to complete electrical work on the switchboard for which he was not qualified. This resulted in the de facto partner of a worker who resided 200 metres from the mine suffering electrocution while in the shower. The Court held that the risks were foreseeable and deficiencies in the maintenance of cabling were ‘obvious’.
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