This calendar year has been a colourful year with increased prosecutions, new industrial manslaughter laws, a dramatic increase in applications to review statutory notices and a new definition of “hazard.”
We started the year with the publication of Marie Boland’s seminal paper, “Review of the model WHS laws: Final report.” The paper is highly informative, and its influence can be seen throughout the year, particularly with the ongoing debate about industrial manslaughter and Victoria’s introduction of the offence.
One of the more noticeable events of the year was the coronial inquest into the deaths of Kate Goodchild, Luke Dorsett, Cindy Low and Roozbeh Araghi at the theme park “Dreamworld.” The tragic incident has been cited on many occasions to justify stronger action, including the introduction of industrial manslaughter laws. The inquest heard evidence throughout the year and has now heard submissions from all parties. A coronial decision will not occur until 2020.
However, one of the interesting concepts run by many of the parties at the inquest was the concept of “hindsight bias.” The principle advocated was that after an incident, it is much easier to identify the cause of the incident. While hindsight is useful in identifying where changes might be implemented to make a workplace safer, the argument is it would be wrong to assume that just because a risk is obvious after an incident, it was obvious before the incident. Applying the argument to those that worked at Dreamworld, the proposition is that the tragic incident involving Kate Goodchild, Luke Dorsett, Cindy Low and Roozbeh Araghi was not foreseeable. Given the public debate about Dreamworld, particularly if one infers from those public statements allegations of fault, it will be very interesting to see if His Honour Magistrate McDougall adopts those submissions.
On the prosecutions front, State and Territory regulators continued to be active in prosecuting businesses for breaches of work health and safety laws throughout 2019. The bulk of the prosecutions were brought by SafeWork NSW, WorkSafe Vic and Workplace Health and Safety Queensland.
Among the prosecutions, we saw increased attention paid to the medical sector with a Victorian hospital charged over an assault on a nurse, a Melbourne Health being charged over the death of a patient and a Melbourne health service fined after a nurse was assaulted.
We saw the first conviction of an unlicensed labour hire provider, South Australia police fined, the first jail sentence (that was not suspended) for an OHS offence and a training organisation fined for falsifying training records.
Other prosecutions included a $1.2 million fine for a Queensland importer of electric pumps, a total $650,000 fine imposed on a company after a labourer fell from a Melbourne high rise,
a foundry in Wodonga was fined $650,000 following a death, and Sydney Trains was fined $525,000 after a worker was fatally hit by a train during track work.
Queensland brought the first industrial manslaughter charge in 2019 against Brisbane Auto Recycling Pty Ltd. Although there have been other charges against other companies for workplace deaths, they are not industrial manslaughter charges. Interestingly the directors of the company were charged at the same time, but they were not charged with industrial manslaughter. The results of the charge will not be known until 2020 at the earliest.
In the NSW District Court this month, His Honour Judge Russell imposed the lowest fine ever for a sole trader following a fatality. His Honour took the circumstances of the offence very seriously but discounted to allow for financial incapacity, the harshness of the drought in central NSW and other mitigating circumstances. It remains to be seen if SafeWork NSW will appeal the decision.
In other court cases that were not focused on sentencing, His Honour Judge Scotting gave what is now one of the most important decisions on officer liability under the harmonised Work Health and Safety Act 2011
(WHS Act). His Honour confirmed that the duty of officers (e.g. directors) is radically different under the WHS Act to what was the former law under section 26 of the Occupational Health and Safety Act 2000
The new duty in the WHS Act relates to a requirement that officers put in place “a system” to ensure that the PCBU (e.g. company) complies with any relevant duties provided for by the WHS Act. However, if the officer were present while work was being performed, that duty might extend to take into account what is happening in front of the officer.
Judge Scotting’s decision has now been followed in WHSQ v Cullen
, where charges against a director were dismissed because the prosecution did not focus on the obligations of officers. Although Judge Scotting’s decision is enlightening, there is a downside and that is that the practical application of his decision means that hands-on directors of small businesses have a much larger burden than executive directors of large corporations. Whereas executive directors of large corporations are not likely to be involved in the day to day operations of the business, small business owners are likely to be working with their employees. That means they witness first hand whether their system is working and if it isn’t, have a more immediate obligation to correct it.
Queensland’s Court of Appeal also gave a judgment on directions given to a jury about category 1 offences. The appeal resulted in Gary William Lavin’s sentence of 12 months' jail being set aside and retrial being ordered. In reaching this conclusion, the Court of Appeal highlighted that the prosecution had to establish that defendants like Mr Lavin did not have a “reasonable excuse.” The court pointed out that there was evidence that Mr Lavin had a reasonable excuse and the jury should have been properly directed on this point.
There was a dramatic increase in applications to review statutory notices in all states. In Queensland the President of Industrial Court of Queensland reported that applications for review under the WHS Act increased from seven in 2017/2018 to 20 in 2018/2019, equating to 286% increase.
SafeWork Australia published a new Code of Practice that included a new definition of “hazard.” If adopted by the states and territories, this new code of practice could dramatically change the extent of the operation of the WHS Act. For example, the new code has identified “work design and management” as an aspect of work that could give rise to a hazard and “excessive time pressure” as another example of a hazard.
To try and capture a pattern for the year, we have seen increased activity by regulators and more insightful debate on the laws and principles of WHS/OHS. If one were to try and extrapolate from our experiences in 2019, 2020 is shaping up to be an interesting and fast-moving year.
This article was originally published on WorkplaceInfo.