Employee drowning occurred just after OHS penalty increases - WA Employee drowning occurred just after OHS penalty increases - WA

Employee drowning occurred just after OHS penalty increases - WA

4 September 2020 | Employer's Liability

Ryan and Melissa Pty Ltd (R & M) and Badge Constructions (WA) Pty Ltd (Badge) are facing fines totalling up to $4.7 million for the drowning of a plumber at a construction site in Mosman Park, Perth.

The background

A plumber was working in a trench at the Perth construction site when a water main burst resulting in the trench filling with water and sand causing him to drown. The incident occurred just days following the Western Australian Government’s decision to pass legislation to increase workplace safety and health penalties under the Occupational Safety and Health Act 1984 (WA) (OSH Act). 

R & M are facing charges for breaching s 19 of the OSH Act arising from their alleged negligence in providing and maintaining a safe working environment which caused the workers death. Under the new regime, a contravention involving gross negligence attracts a maximum level 4 penalty of $2.7 million for a body corporate’s first offence. Badge is currently facing a level 3 penalty and this now attracts a maximum penalty of $2 million for a body corporate’s first offence.

For completeness, the below table provides a summary of the penalty increases under the changes to the OSH Act:

OHS Penalty Description

OSH Penalty Level

OSH Provision

Duty Holder

Penalty

Applies when a person commits an offence against the OSH Act for which a penalty is not otherwise specified

1

3A(1)(b)(i)(I)

First offence- Individual

$100,000

3A(1)(b)(i)(II)

Subsequent offence-individual

$120,000

3A(1)(b)(ii)(I)

First offence- Body Corporate

$450,000

3A(1)(b)(ii)(II)

Subsequent offence- Body Corporate

$570,000

Applies when a relevant provision is contravened but not in circumstances of gross negligence or causing death, or serious injury to a person

2

3A(2)(a)(i)

First offence- Individual

$250,000

3A(2)(a)(ii)

Subsequent offence- individual

$350,000

3A(2)(b)(i)

First offence- Body Corporate

$1,500,000

3A(2)(b)(ii)

Subsequent offence- Body Corporate

$1,800,000

Applies when a relevant provision is contravened causing the death of, or serious harm to, a person

3

3A(3)(a)(i)

First offence- Individual

$400,000

3A(3)(a)(ii)

Subsequent offence- Individual

$500,000

3A(3)(b)(i)

First offence- Body Corporate

$2,000,000

3A(3)(b)(ii)

Subsequent offence- Body Corporate

$2,500,00

Applies when a relevant provision is contravened in circumstances of gross negligence

4

3A(4)(a)(i)

First offence- Individual

$550,000 and imprisonment for 5 years

3A(4)(a)(ii)

Subsequent offence- Individual

$680,000 and imprisonment for 5 years

3A(4)(b)(i)

First offence- Body Corporate

$2,700,000

3A(4)(b)(ii)

Subsequent offence- Body Corporate

$3,500,000

On 3 September 2020, SafeWork WA commenced its prosecution against R & M and Badge. As this is the first case following the penalty increases, it will be interesting to see whether the Court will impose heftier penalties in line with the legislative change.

This article was authored by Laura Sowden and Lucinda Touma.

Author

Laura Sowden

Laura Sowden

Special Counsel