How WHS Laws Can Send PCBUs or Business Directors to Jail

Australian courts are holding individuals accountable for major work health and safety breaches. If you are a business owner (‘PCBU’) or director, failing to comply with WHS legislation may result in legal action.

The past few years have seen an increase in prosecutions brought against PCBU’s for failure to take reasonable care and negligence. This includes several high-profile incidents where directors received lengthy jail time.

What Led to the Increased Penalties for WHS Breaches?

Before the recent cases that resulted in jail time, organisations typically received fines for incidents that resulted in death or serious injury. However, several accidents in recent years have attracted more public scrutiny.

In 2013, a wall surrounding a construction site collapsed, killing three pedestrians. In 2014 within the Royal Adelaide Show, an eight-year-old girl died from injuries sustained from an accident involving an amusement ride. Another similar case involved a malfunctioning ride in 2016 when four passengers were killed in Queensland’s Dreamworld Theme Park.

These cases resulted in fines but no jail time for the PCBUs or supervisors responsible for maintaining the safety of the equipment and general environment.

After a review of model WHS laws, a committee recommended several changes to the penalties for recklessness and negligence in the workplace. Two of the biggest changes include the addition of an industrial manslaughter offence and increased financial penalties.

In fact, several recent cases have involved significant jail time and fines for those found responsible for violating the health and safety laws.

Company Director Receives Six Months Imprisonment

In one example involving jail time, the courts found a company director in Victoria guilty of breaching the Occupational Health and Safety Act 2004 (Vic) following the death of a worker after a fall from a forklift.

The incident occurred at Maria’s Recycling Emporium. The operator of the forklift, Maria Jackson, was also the owner of the second-hand goods and recycling business. Ms. Jackson did not have the required licence for operating a high-risk vehicle.

Mr. Robbie Blake was inside a recycling bin and removing scrap steel on a raised forklift operated by Ms. Jackson. When the forklift was raised 3m and as Mr. Blake was removing the steel, the bottom of the bin fell out from underneath him. Mr. Blake was dropped three metres, with the bin then falling from the forklift and onto him, resulting in his death. Ms. Jackson pleaded guilty to failing to provide a safe system for work and recklessly engaging in conduct that places a worker in danger of serious injury. The courts sentenced the director to six months imprisonment and charged a $10,000 fine.

Director Receives One-Year Prison Sentence

After the death of a worker due to a fall from a height of 5.9 metres, a director received a one-year prison sentence and a $1 million fine. This case marked the first category 1 offence prosecuted in Queensland.

The original verdict found Gary Lavin and his company, Multi-Run Roofing, guilty of reckless conduct. The judge found that Mr. Lavin had not installed the necessary height safety rails due to a proposed $5,000 cost. However, the courts later threw-out the conviction and scheduled a retrial due to misdirection to the jury.

What Is a Breach of the Work Health and Safety Act 2011?

Recent cases that resulted in jail time for PCBUs and directors involved breaches of the WHS Act. A breach occurs when PCBUs, officers, or workers fail to comply with WHS legislation. This includes failure to follow WHS regulatory requirements or taking action that places a person at risk of an injury or illness.

An example of a breach includes working at heights without the proper safety precautions or allowing unlicenced operators to use forklifts or other specified equipment.

Under the WHS Act, there are now four categories of punishable offences. When PCBUs fail to comply with the current laws, their penalty may depend on the category:

• Industrial manslaughter;
• Category 1 offences;
• Category 2 offences; and
• Category 3 offences.

Industrial manslaughter remains the highest penalty. When the negligence of a PCBU or senior officer results in the death of a worker, they may face up to 20 years imprisonment.

For a corporate body found guilty of industrial manslaughter, the courts may fine the corporation up to $10 million.

The remaining three categories involve situations where a person fails to comply with WHS duties. Reckless conduct is a category 1 offence. PCBUs found guilty of this offence face up to five years in jail and a fine up to $600,000.

These categories also apply to workers. If a worker engages in reckless conduct, he or she may face up to five years in jail and a $300,000 fine.

Category 2 and Category 3 offences also include hefty fines but no jail time. These offences include situations where a corporation, PCBU, officer, or worker fails to comply with WHS act laws, exposing workers to a risk of death or serious injury.

What Are Infringement Notices?

In many cases, organisations, PCBUs, and individual workers do not face immediate prosecution for breaches of WHS requirements. Instead of prosecuting breaches of the WHS Act, inspectors may opt to issue infringement notices. These on-the-spot fines range between $144 and $720 for individual workers. For PCBU’s and organisations, they may receive fines between $720 and $3,600 for infringement notices. Inspectors have the right to issue these notices for emerging risks.

While some organisations may receive infringement notices, there has been a steady increase in prosecutions for higher-category offences.

How Can PCBUs Avoid Jail Time?

In the end, it is the responsibility of every employer to provide a reasonably safe workplace and to follow the requirements of WHS legislation. You should also provide officers and health and safety representatives with the resources needed to complete their duties.

If you are a PCBU, director, or supervisor, regularly review your WHS system for compliance with all relevant laws and regulations. As these laws frequently change, it is essential to continually review and revise safety practices.

To avoid jail time and financial penalities, stay up to date with the latest trends and recommendations for workplace safety, including any changes to WHS legislation. Ensure that you are taking every reasonably practicable step to reduce risks and hazards.