Director jailed over workplace death "Are you potentially liable"?

26/05/2021 - 11:17

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MT Sheds (WA) director Mark Thomas Withers was sentenced to two years and two months’ imprisonment in the Esperance Magistrates Court after pleading guilty to gross negligence leading to the death of a 25-year-old worker and the serious injury of another.

Therefore, under the Occupational Safety and Health Act 1984 (WA) (OSH) liability maybe held personal as evidence by the period of incarceration imposed on Mr Withers.

The Government of Western Australia is committed to repealing OSH and replacing same with the Work Health and Safety Act (WHS) on January 1, 2022. It will introduce a new offence, amongst other things, industrial manslaughter, with fines of up to $10 million and jail terms of up to 20 years.

Industrial manslaughter is extremely serious however that is not to say it is the only serious offence within WHS. As a general comment, the WHS Act places a higher burden for safety and health upon all who undertake workplace activities.

An underlying cornerstone principal of the WHS is proactivity. It is no longer possible for business owners, directors, or officers to ‘sit on their hands and hope that others within the organisation have safety and health issues under control so to speak’. The WHS imposes a non-delegable duty of care on Persons Conducting a Business or Undertaking (PCBU), directors and or officers. Indemnification or insurance for breach of the WHS provisions is statutorily prohibited.

A person or organisation who can demonstrate proactivity from the concept of ‘so far as is reasonably practicable’ may mitigate risk whilst at the same time promote a defendable position, should, for whatever reason a serious injury and or death occur.

Fides Safety Management strongly advocates that business undertake an independent internal Gap Analysis of their current Safety Management System (SMS) to determine if, and to what extent, the current SMS is compliant or non-compliant to the WHS provisions. A qualitative and quantitative analysis sets a definitive position upon which business is able to determine what may or may not need to be undertaken to meet the requirements of WHS.

The competence and experience of the Fides Safety Management team can be viewed at www.fidessafetymanagement.com.au

Author: Bill McSharer - Fides Safety Management Pty Ltd

 

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