WORK HEALTH AND SAFETY - SECTION 27/31

Officer found guilty, released on Appeal 

In a recent decision of the Queensland Court of Appeal, Gary Lavin, a sole director of Multi-Run Roofing Pty Ltd, had his conviction and sentence of 12 months imprisonment overturned.

Mr Lavin and his company had been convicted by a jury in the Maroochydore District Court on the 6 February 2019 for a breach of section 31 of the Work Health and Safety (WHS) Act of Queensland. The company was fined $1M.

Facts

On the 29 July 2014, an employee of Mr Lavin's company was working on a roof when he has walked over to the edge, tripped and fallen approximately six metres to the ground below suffering fatal injuries. The contract for the roofing work included the installation of edge protection for workers on the roof. 

However, Mr Lavin's company did not erect edge protection but provided a system of using a scissor lift to provide edge protection together with the use of harnesses and lanyards. At the time of the incident, the worker was not wearing a harness and the scissor lift was not located in the fall area.

Criminal Charges

Indictments, alleging a breach of section 31 of the WHS Act were also presented to the jury against the company that subcontracted to Mr Lavin's company for the work, Lavin Constructions Pty Ltd and its sole director, Peter Lavin. The jury could not return a verdict on the co-accused. 

Court of Appeal finds misdirection to the jury

The court of Appeal determined that the trial judge had misdirected the jury as to the reasonable excuse that Mr Lavin was entitled.

In determining whether there was a reasonable excuse, the court held:

"The jury was obliged to consider the alternative measures which the appellant directed to be put in place (the harnesses and the use of the scissor lifts), not just whether it was reasonably practicable to install railing."

And further, the court stated:

"Reasonable excuse also raises consideration not only of what measures were put in place but also what measures the appellant believed had been put in place. His belief is relevant to the reasonableness of any excuse."

The court of appeal then held that the real question to be determined was that following Mr Lavin directing the workers to use harnesses if working near the edge and to position the scissor lift so that it constitutes a barrier, having given those directions and in the context of other relevant evidence in the case, whether he had a reasonable excuse for not causing his company to erect the railing.

Mr Lavin's conviction was then set aside and a retrial ordered.

Commentary 

The Court of Appeal stated that the belief of the Officer as to the work being undertaken by his company and its workers, is relevant to the Officers' compliance with section 27 of the WHS Act. 

This belief, however, is to be considered with other relevant evidence in the case. This will, therefore require each officer, to consider, objectively, if their business is compliant with current work safety practices that meet community expectations. Ensuring the business has a safety management system that meets the compliance standards is one step towards freedom.

NSW District Court - Officer charge to stand

In a recent decision from the District Court of NSW an officer of Hetherington Plumbing Services Pty Ltd has been required to answer a charge that he, as an Officer, breached section 27 of the WHS Act for an incident in 2016 where workers, on a roof, were wearing safety harnesses that were not attached, when a worker fell through the roof sheeting. The court noted that it was the submission of the prosecution (Safework NSW), that:

"The failures of the PCBU and an Officer amounting to breach may be the same or overlap."

The Court held that an Officer is required to adhere to a minimum standard of behaviour involving a system which ensures compliance by the PCBU with its duties and obligations under the WHS Act. The court held:

"The minimal standard of behaviour and the system is to take reasonable steps to include the objectives in section 27(5)(a) to (f)."

In conclusion, the court noted that although parts (a) to (f) of section 27(5) are not exhaustive, any other relevant matters must in some way relate to the system implemented and be enforced by an Officer to ensure compliance by the PCBU.

Brisbane Magistrates Court Orders Company Director to 12 months Imprisonment

In a recent decision of the Brisbane Magistrates Court, an executive officer of MCG Quarries Pty Ltd has been convicted of breaching the mining safety legislation in Queensland and sentenced to 18 months imprisonment with a non-parole period of six months. The officer has filed an appeal.

The prosecutions, against MCG Quarries and two of its executives arose from the death of a 21 year old worker who received fatal injuries whilst working on an unguarded conveyor at South Moranbah in June 2012.

MCG Quarries (in liquidation) was fined $400,000 and the other executive fined $35,000.

Recommendations

It is recommended that Officers of corporations consider the following steps to ensure they are in the best position to avoid facing criminal charges in Court:

  1. Recommend that the PCBU undertake a compliance check of its safety management system

  2. Ensure that a WHS Officers Due Diligence system is in place and operating

  3. The executives of the PCBU undertake critical incident response training.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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