First prosecution under new WHS laws sees employer fined $10.5K

Employers will be aware that the Work Health and Safety Act 2012 (WHS Act) commenced operation in South Australia on 1 January 2013.  Together with the Work Health and Safety Regulations 2012 (WHS Regulations) and a number of Codes of Practice, the WHS Act repealed the previous Occupational Health Safety and Welfare Act 1986 and contains the current standards for the health, safety and welfare of persons at work.

Smith v Olga’s Fine Foods Pty Ltd [2014] SAIRC 39 is the first decision entered in relation to the WHS Act.  The case involved an employee sustaining a finger crush injury while working on an automated schnitzel conveyor line.  The employee was injured when inspecting a grating noise in the drive chain.  The drive chain was enclosed by a guard with a hinged cover which could easily be opened by undoing a single-clasp latch, even while the machine was operating.

Following an investigation by SafeWork SA, the employer was charged with a breach of regulation 208(3) of the WHS Regulations.  Regulation 208(3) relates to guarding and provides that:

  1. The person with management or control of the plant must ensure that the guarding –
    1. is of solid construction and securely mounted so as to resist impact or shock; and
    2. makes bypassing or disabling of the guarding, whether deliberately or by
      accident, as difficult as is reasonably practicable; and
    3. does not create a risk in itself; and
    4. is properly maintained.

The maximum penalty for a breach of regulation 208(3) is $6,000 for an individual and $30,000 for a body corporate.

The employer entered a guilty plea and was sentenced for what the Court described to be “a serious breach of the regulation”.  Magistrate Lieschke explained:

The offence represents a serious flaw in Olgas’ system of the safe use of this machine.  The security of the guard was an important hazard control measure, especially in the absence of any interlocking device.  Olgas should have made it as difficult as reasonably practicable to bypass or disable for the purpose of inspection or actual maintenance of the moving parts of the machine.  Instead the guard had been designed to make it very easy to open.

The employer had previously been sentenced in relation to a machine guarding offence, however the Court noted the employer’s mitigating circumstances (ie. cooperation with SafeWork SA, apology to the victim and SafeWork SA, entry of guilty plea at earliest opportunity) and ordered that it must pay a fine of $10,500 ($11,685 including fees).

Employers should note that this case was irregular in that the employer was only prosecuted in relation to a breach of the WHS Regulations and not a section of the WHS Act.  If the prosecution had been based upon a breach of the WHS Act, the maximum penalty ranges are as follows:

  • $500K – $3M for body corporates;
  • $100K – $600K/5 years imprisonment for individual PCBUs or officers; and
  • $50K – $300K/5 years imprisonment for individual workers or another person at the workplace.

The amount of a penalty ordered will depend on the seriousness of the offence in question.

This decision highlights that the WHS Act is in full swing and that there is a good chance that a prosecution will follow where SafeWork SA determines that an employer has failed to meet its obligations under the WHS Act.  The decision also emphasises the need to act promptly in the event that an employer is issued with a Notice and proceedings.  For example, it is important to get advice in relation to your right to protect yourself against self-incrimination to avoid handing over more information than is necessary and landing you/your business in trouble!

Please contact a member of Lynch Meyer’s Workplace Relations team if you have a WHS query.