For the first time in the 37 years since the Occupational Safety and Health Act 1984 (OSH Act) came into effect, an individual has been sentenced to imprisonment in Western Australia. The successful prosecution may be one of the last prosecutions brought under the OSH Act which is soon to be replaced by the new Work Health and Safety Act 2020 (WHS Act).
In March 2020 a 25-year-old worker, Mr Jake Williams, was killed and his 21 year old co-worker was seriously injured after they fell nine meters from the roof of a shed they were installing on a farm. A strong wind lifted roof sheets from a pack which they were working on which resulted in the men falling.
The director of MT Sheds (WA) Pty Ltd (MT Sheds), Mark Withers, was sentenced to two years and two months’ in jail, with eight months to be served immediately and the remaining 18 months suspended for a period of 12 months.
Mr Withers and MT Sheds faced a total of seven charges in all, including a gross negligence charge against MT Sheds, while Mr Withers was charged with allowing the gross negligence to occur with his consent or through his neglect. Both MT Sheds and Mr Withers pleaded guilty in the Esperance Magistrates’ Court to these offences.
WorkSafe alleged that neither worker held the necessary high-risk work licences for the job they were performing, were not wearing safety harnesses and Mr Williams was permitted to undertake construction work without a construction induction training certificate. The court was told that there was a “failure to implement safety systems and supervise for a long period of time“, that the risk of an incident of this type occurring was not low and “there was a knowing acceptance of the danger” by Mr Withers given he had been in construction for 30 years and knew of the risks. The court found there were no risk control measures in place, nor did Mr Withers or the two workers have the required high-risk work licences to perform the work.
MT Sheds was convicted and fined $550,000 for its gross negligence and a further $55,000 for breaches of the Occupational Safety and Health Regulations.
The incoming Western Australian WHS Act, which is expected to come into effect in the coming months, will place primary duty obligations on the broadly defined “Person Conducting a Business or Undertaking” (PCBU) rather than on ‘employers’. For the most serious offence of industrial manslaughter, PCBUs face a maximum penalty of $10 million, while individuals could face up to 20 years’ imprisonment and a fine of up to $5 million (the new WHS Act also prohibits insurance and indemnities for such fines). In addition, the WHS Act places wider and more explicit proactive obligations on individual company officers to exercise due diligence to ensure that the PCBU complies with its duties.
This case highlights the increased focus by Regulators nationwide on individual liability. While all jurisdictions have had safety legislation in place for decades, since 2018 we have seen a number of terms of imprisonment being handed down by courts, including in Queensland and Victoria, for breaches of safety legislation.
The imprisonment of Mr Withers is reflective of the changing WHS enforcement landscape and an emerging pattern of increasing fines and penalties. West Australian PCBUs, and their management, should amongst other things, be reviewing their safety management systems to identify gaps and should be taking steps to address those matters to ensure compliance with the new legislation before it comes into effect.