Prosecutions

Under the Work Health and Safety Act 2011, when an incident occurs or suspected workers compensation fraud may have taken place, WorkCover sends inspectors to carry out investigations

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 These investigations help WorkCover determine:

•exactly what caused the incident

•the lessons learnt to improve workplace safety and prevent injuries

•if and when to prosecute 

During their investigations they liaise with other agencies such as police and local council to determine jurisdiction and which agency has the lead role in an investigation.

Compliance and prosecution guidelines

The community expects appropriate penalties when work health and safety legislation is ignored, evaded or breached, or fraudulent behaviour is detected on the Workers Compensation Scheme. In a workplace fatality the Police and Coroner may also be involved to determine the manner and cause of death and WorkCover may provide its investigation report to assist the Coroner. The evidence from the Coronial Inquiry may also be used by WorkCover in any prosecution that is commenced.  Prosecution is considered when the significance of the offence warrants a strong response that can act as a deterrent.

 Requesting a prosecution

Any worker or employee, or in fact any person, can request WorkCover to make an inspection and commence a prosecution if they say they believe that a category one or two offence of the Work Health and Safety Act 2011 has occurred.

If WorkCover has not commenced a prosecution between six and 12 months of the offence occurring the employee can demand that WorkCover commence the prosecution. WorkCover also offers support following a serious injury or fatality and considers the impact on the worker and/or the family and provides a counselling service during the investigation and any prosecution through the Court.

 

Legal enforcement

Each state, territory and the Commonwealth will continue to have its own regulator to administer the WHS laws in their jurisdiction.  The regulator has powers to obtain information by written notice. A written notice can be served on the a person requiring them to appear before an inspector on a day, time and place specified in the notice. The person may attend with a legal practitioner. It is an offence to refuse or fail to comply with a request without reasonable excuse.

 

 

 

 

 

 

Functions and powers of inspectors

Inspectors have the following general functions and powers:

  • to require compliance with the WHS Act by issuing notices
  • to investigate contraventions and assist to prosecute offences, and
  • to attend coronial inquests in respect of work-related deaths and examine witnesses.
  • Inspectors are subject to the regulator’s directions in the exercise of their compliance powers.
  • adverse publicity orders
  • restoration orders
  • work health and safety project orders
  • court-ordered work health and safety undertakings
  • injunctions, and training orders.
  • not consult with other duty holders on work health and safety matters as required (section 46)
  • not consult with workers on work health and safety matters as required (section 47).
  • fail to negotiate with workers or their representative regarding the formation of work groups at a workplace (sections 52, 56)
  • fail to consult with an HSR on work health and safety matters as required
  • fail to provide an HSR with access to information the person has relating to hazards affecting their work group members and work health and safety of work group members
  • fail to allow an HSR to attend interviews that they are entitled to attend as representatives
  • fail to provide resources, facilities and assistance that are reasonably necessary for the election of HSRs, to allow HSRs to carry out their health and safety duties
  • prevent an HSR from accompanying an inspector during an inspection of a place that affects work health and safety of work group members
  • deny a person assisting an HSR access to the workplace in accordance with entitlements
  • fail to allow an HSR time off with pay that is reasonably necessary to attend to their health and safety duties
  • refuse to allow an HSR to attend an approved training course they are entitled to attend
  • fail to establish an HSC within two months of being requested to do so (section 75)
  • fail to allow members of the committee time off with pay that is reasonably necessary to attend committee meetings and carry out functions as a committee member (section 79).

Inspectors may compel self-incriminating answers to questions or by seeking information. If a person is required to answer a question or provide information or a document as explained above the inspector must warn the person that they are not excused from answering a question or providing information or a document on the ground that they may incriminate themselves.

 

Powers of entry for inspectors

In performing their functions and exercising powers an inspector may enter a workplace or a suspected workplace at any time with or without the consent of the person with management or control. If it is not a workplace they must leave immediately unless they are authorised by a search warrant to be there or the person with management or control consents. They may also pass through places used for residential purposes at a reasonable time if it is the only known way to access a workplace.

 

Search warrants

An inspector may apply to a magistrate or other person authorised to issue warrants for a search warrant. A search warrant may be issued if there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, evidence of an offence against the WHS Act at the place.

Before executing the warrant the authorised inspector or their assistant must announce they are authorised by the warrant to enter the place and give anyone at the place an opportunity to let them in. This is not required if the inspector believes on reasonable grounds that immediate entry is needed to ensure a person’s safety or to avoid frustrating the execution of the warrant.

 

OFFENCES AND PENALTIES

Penalties for breaches of the Occupational Health & Safety Act have been substantially increased. The maximum penalties are now $1,075,050 for a body corporate and $215,010 for a natural person for individuals. The WHS Act provides for three categories of criminal offences for breach of health and safety duties. The maximum penalties are different depending on the category of the offence.

 

Penalties for breach of health and safety duty offences

 

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Corporation

Individual as the person carrying out the business or  an officer

Individual as a worker or other

Category 1 - a duty holder, without reasonable excuse,  engages in conduct that recklessly exposes a person to a risk of death or  serious injury or illness.

$3 million

$600,000

five years in jail or both

$300,000,

five years jail or both

Category 2 -   a duty holder  fails to comply with a health and safety duty that exposes a person to risk  of death or serious injury or illness.

$1.5 million

$300,000

$150,000

Category 3 a duty holder fails to comply with a health and  safety duty.

$500,000

$100,000

$50,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Alternative penalty options

In addition to imposing a penalty courts may impose alternative remedies including:

  • adverse publicity orders
  • restoration orders
  • work health and safety project orders
  • court-ordered work health and safety undertakings
  • injunctions, and training orders.
  • not consult with other duty holders on work health and safety matters as required (section 46)
  • not consult with workers on work health and safety matters as required (section 47).
  • fail to negotiate with workers or their representative regarding the formation of work groups at a workplace (sections 52, 56)
  • fail to consult with an HSR on work health and safety matters as required
  • fail to provide an HSR with access to information the person has relating to hazards affecting their work group members and work health and safety of work group members
  • fail to allow an HSR to attend interviews that they are entitled to attend as representatives
  • fail to provide resources, facilities and assistance that are reasonably necessary for the election of HSRs, to allow HSRs to carry out their health and safety duties
  • prevent an HSR from accompanying an inspector during an inspection of a place that affects work health and safety of work group members
  • deny a person assisting an HSR access to the workplace in accordance with entitlements
  • fail to allow an HSR time off with pay that is reasonably necessary to attend to their health and safety duties
  • refuse to allow an HSR to attend an approved training course they are entitled to attend
  • fail to establish an HSC within two months of being requested to do so (section 75)
  • fail to allow members of the committee time off with pay that is reasonably necessary to attend committee meetings and carry out functions as a committee member (section 79).

Negligent workers

Negligent workers are an employer’s liability. Their duty of care under health and safety legislation extends to negligent workers who may cause a workplace incident through carelessness.

An employer  has liability under health and safety laws for the negligent worker. This means that an employer may be found liable because of actions of not just an ideal worker who follows safe work procedures exactly but also to the careless, inattentive and inadvertent worker. These are the ones more likely to injure themselves and others in a workplace, however human nature being what it is, you can never be sure.

The authorities are clear on the this fact. An employer must take precautions to prevent a worker suffering an injury when implementing his or her general duties. This is even as a result of the worker’s own negligence.

canstockphoto8505318.jpgIf an employer has machinery or plant operating in a workplace, they must have safe work procedures in place for each machine that workers who use the machinery are trained in. The safe work procedures must specify what workers should and should not do when operating the machinery. An employer must also supervise inexperienced workers and provide WHS consultation and refresher training for more experienced workers.

 

In the case of Hillman v Rocket Industries Pty Ltd (2013) we see what happened to an  employer when they were found liable for the carelessness of a worker who injured themselves.

Case law: Hillman v Rocket Industries Pty Ltd (2013Employer liability for actions of a careless worker)

Mr Miller was an employee of brush manufacturer Rocket Industries. Mr Miller was operating a brush-making machine when his finger became caught by a moving part of the machine called the knot picker, which was not guarded. His finger was broken and lacerated.

Rocket Industries had a safe operating procedure in place for the operation of the machine, but the work practice adopted by Mr Miller was contrary to that procedure. The defendant was charged with a breach of the Occupational Health, Safety and Welfare Act 1986 for failing to provide and maintain, so far as reasonably practicable, plant in a safe condition by failing to guard the knot picker to prevent access by workers while the machine was in operation. Rocket Industries pleaded guilty.

The business was aware of its responsibilities in relation to safety at the worksite. It had safe operating procedures in place, and it had engaged a consultant to advise what safety improvements were required. However, the recommendations in relation to guarding had not been fully implemented. Should the recommendations have been implemented, the incident might have been prevented.

Mr Miller’s actions were “somewhat foolhardy”, but the authorities are clear that, in implementing its general duty, an employer must take precautions to prevent a worker suffering an injury even as a result of the worker’s own negligence. The defendant was fined $25,250, after a 25% discount for its early guilty plea, contrition and cooperation.

From this case we can learn that WHS and safe working procedures once identified must be implemented. Those developed for machines must specify what workers should, and should not, do when operating those machines.

*      Supervision of inexperienced employees is critical.

*      Refresher training for experienced workers is vital.

An employer’s general duty of care extends to careless workers

 

 

This means that an employer must take steps that contemplate that a worker may be inadvertent or careless.

A worker's duty of care as an employee in the workplace involves:

  • co-operating with your employer's workplace safety policies and procedures
  • reporting any hazards
  • wearing protective clothing
  • using equipment according to the directions and manufacturer's recommendations
  • being careful with your own safety as well as customers and staff
  • ensuring customers and visitors are aware of any special safety procedures