Can Your Business Afford Not to Think About WH&S? 3

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Wednesday, February 24th, 2016
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As a workplace health and safety consultant, I often hear complaints that WH&S compliance is confusing, time consuming and often unnecessary.

Thankfully I don’t meet many of the companies that do nothing for workplace safety, but it is obvious from the minute you step inside their premises or walk past a work site.

Fortunately, I’m not the only one who thinks workplace safety is important; the Australian court system is demonstrating its commitment to worker safety also.

In August 2015, one of the largest penalties for safety breaches in Australia was issued by the ACT Industrial Court. The court fined Kenoss Contractors $1.1 million – out of a maximum penalty of $1.5 million.

Although Kenross Contractors have gone into liquidation and the fine is unlikely to ever be paid, the judgement is significant for three key reasons.

One key lesson is that the courts have demonstrated that fines for gross negligence are increasing. Some core failings included an absence of safety signs or flags to warn of live power lines, and access to the work site was poorly managed with no locks. The power lines were not turned off during the work and no spotter was used. Kenoss communicated with its own employees not to use the smaller compound where the incident occurred, but there was no evidence that there was any consideration of site visitors like the victim. Kenoss then exacerbated the incident further by attempting to interfere with the authority’s investigation, including modifying site attendance records for the victim.

The second key lesson is that at this stage, the prosecutor could form a case where the project managers would be prosecuted as an officer. An officer is defined as having substantial control over business decisions, and the Kenoss judgement was clear in dismissing the charges against Kenoss project manager Munir al-Hasani, as the ACT Industrial Magistrates Court wasn’t satisfied that his position and responsibilities amounted to his being an officer.

This decision no doubt comes as a relief for many employees as, although they can face liability under health and safety law, their responsibilities are far narrower than those of an officer. Of course, this does not mean that senior managers can shirk their responsibilities, but it is an assurance that the law is unlikely to treat them as if they had substantial control over business decisions when this is not the case.

The third element of significance was that the court found that Kenoss had a poor corporate culture and attitude toward safety. Kenoss’ safety officer was the son of the general manager and had no appropriate qualifications. The company also lacked documentation and a systematic approach to safety.

When it comes to safety, a systematic approach, combined with ongoing training for all employees, contractors and site visitors is the best approach. There are many pre-defined WH&S system checklists available for a variety of industries, so it is not necessary to start from scratch.

Create a culture where everybody puts safety first and together we can help to avoid more unnecessary tragedies.

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  1. Greg Smith

    I think it is quite misleading to suggest that the Kenoss case represents some new level of "normal" when it comes to WHS fines. The Company was an unrepresented litigant that offered nothing by way of mitigation. Standard mitigation submissions and an early guilty plea would typically reduce the penalty by between 25% and 50%, bringing the decision in line with normal sentences. If we are going to promote safety based on fear of prosecution, then lets at least get the consequences accurate.

    • Jon Wilfred

      Fair comment Greg. Question, would you happen to be part of the legal team on this case? If so, full disclosure would be most appropriate.

  2. Mike Baldwin

    Jon, with respect that is a very strange comment. Greg practices in WA, this was an ACT case, prosecuted by the local DPP following a brief from ACT Worksafe. All of which you would have known if you had read the case.