An employee in WA was tragically killed in a workplace accident when a pack of crane components slipped in the course of being lifted. The employer company and directors were prosecuted for breaching the OHS Act 1984 (WA) (Act) by failing to provide a safe workplace. The result was that the directors were slugged with a $45,000 fine on top of the $90,000 fine imposed on the Company.
Significantly, the directors were prosecuted on the basis the offence "occurred with the consent or connivance of, or was attributable to any neglect on the part of any director ..."
The directors argued that they had discussed the appropriate (and safe) lifting method with the yard supervisor and assumed this method was being used. The Court said the steps taken by the directors were inadequate and that they should have tried to ensure a safe system of work. This was because of, among other things, the directors' knowledge of the hazard and the appropriate safe lifting method; that it was foreseeable that an employee might use an alternate and unsafe method; and there was a lack of safety induction and training procedures.
Although the prosecution occurred in WA which has not signed up to the harmonised WH&S regime, the case is still a cautionary tale. Significantly, the recent harmonised regime introduced a positive obligation on "officers" of "persons conducting a business or undertaking" to "exercise due diligence".
Ultimately, the failure in this instance was due diligence in relation to a safe system of work. Ensuring that processes are implemented and followed is vital to ensuring health and safety, and this squarely falls within the scope of the "due diligence" requirement.
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