Work health and safety legislation in Australia places significant duties and obligations on persons conducting a business or undertaking (PCBU) to ensure the health and safety of workers. These duties and obligations, and the penalties for non-compliance, are intended to reflect the serious harm that could be suffered by workers at work and to act as deterrents to employers taking shortcuts when it comes to health and safety.
PCBUs must have the correct processes and measures in place to mitigate risks to the safety of workers in the workplace, no matter how obvious the risk may seem.
In the recent case of Attorney General v Jamestrong Packaging Australia Pty Ltd  NSWCCA 319, the NSW Court of Criminal Appeal (NSWCCA) set aside a sentence imposed by the NSW District Court on a PCBU following an incident which resulted in a worker fatally falling from a four-metre height. The NSWCCA held that the initial sentence was manifestly inadequate given the PCBU’s failure to manage such a profoundly obvious risk, and in doing so, quadrupled the fine imposed.
At the time of the incident in or about August 2016, Jamestrong Packaging Australia Pty Ltd was undertaking construction work on one of its sites in NSW to build an enclosure room. As part of the construction, large penetrations had been cut into the ceiling panels of the enclosure room. The penetrations were not covered or fenced off, and were not marked to notify workers of the potential risk of serious injury. There was also evidence that the exposed penetrations had been discussed at toolbox meetings but that nothing had been done to reduce the risk of a fall.
A worker was instructed to complete electrical works on the ceiling panels when he fell over four metres through one of the penetrations and landed on the concrete floor below. The worker sustained severe injuries and unfortunately later died.
The PCBU pleaded guilty in the NSW District Court to breaching s 32 of the Work Health and Safety Act 2011 (NSW) by failing to comply with its health and safety duty and exposing the worker to a risk of death or serious injury or illness.
In determining the appropriate penalty, Judge Strathdee had regard to the following subjective factors:
- The PCBU’s ‘excellent safety record’ for 20 years up until the incident;
- The PCBU’s safety performance following the incident, such as installing fixed covers on the penetrations and implementing more rigorous systems to fulfil its safety obligations to workers;
- The acknowledgment by the PCBU and its senior management of their corporate responsibility and their expressions of remorse for the incident; and
- The PCBU’s genuine sympathy and support for the worker’s family, including practical assistance and support.
In considering the above factors, Judge Strathdee imposed a fine of $75,000 (from the maximum of $1.5 million).
The Attorney General subsequently lodged an appeal in the NSWCCA against the sentence, arguing that the fine was manifestly inadequate. At the hearing of the appeal, the PCBU conceded that the penalty was manifestly inadequate.
The NSWCCA found no error in Judge Strathdee’s consideration of subjective factors, however considered that the PCBU’s failure to mitigate such a profoundly obvious risk constituted a high order of negligence, and therefore warranted a substantially higher fine.
The NSWCCA stated that the PCBU ought to have known, and did not need any safety regulation to confirm, that working at a height of four metres on a ceiling with uncovered penetrations carried a significantly high probability of serious injury and called for obvious risk reduction measures. The NSWCCA then went on to state that the risk could have readily and cheaply been reduced by fixing a sheet of plywood over each penetration.
The NSWCCA therefore held that the initial fine imposed was manifestly inadequate by a factor of four, and that a fine of $400,000 would be appropriate, discounted by 25% to $300,000 following the PCBU’s guilty plea.
Lessons for employers
The significant penalty pursued on appeal in this matter is indicative of the Government’s approach to ensuring compliance with work health and safety laws.
More importantly, this matter sets out why compliance with work health and safety laws is essential. No matter how obvious a workplace risk may seem, PCBUs must have the correct processes and measures in place to mitigate that risk and ensure the health and safety of workers in the workplace.
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