Fines imposed upon two PCBUs have been increased to almost $1million this week, following appeals. The NSW Attorney-General has impressed upon PCBUs the importance of workplace safety and has reiterated that the fines reflect the community’s growing intolerance of serious work safety incidents.
Those concerns informed recent recommendations, taking into account the review of the national model WHS laws, and offered insight into the proposed offence of industrial manslaughter and increasing maximum fines across all Australian jurisdictions.
In the new NSW cases, the Court of Criminal Appeal increased a fine imposed on Ceerose Pty Ltd from $300,000 to $600,000, and increased a Macmahon Mining Services Pty Ltd penalty five-fold, from $75,000 to $375,000.
A third PCBU, DSF Constructions Pty Ltd, was luckier, with the majority upholding its $225,000 penalty, but a dissenting judge said the sentence should have been quashed and replaced with a $450,000 fine.
The fines for Ceerose and DSF relate to the August 2013 death of a labour-hire worker, who was killed by a falling steel skylight structure at a Sydney refurbishment project, where Ceerose was the principal contractor, and DSF was engaged in manufacturing and installing steel works, including the skylight.
An exclusion zone beneath the skylight and an operating crane was disbanded before the skylight was adequately secured in place, and the worker was directed to perform duties in the area. The crane or its load then struck the skylight, which fell 11 metres onto the worker.
Ceerose and DSF both pleaded guilty to breaching sections 19 and 32 (“Failure to comply with health and safety duty–Category 2”) of the State WHS Act, and were fined $300,000 and $225,000 respectively by District Court Judge Bill Kearns in August 2016.
Judge Kearns found Ceerose was more culpable than DSF because it had overriding responsibility for safety on the site, and should have ensured DSF secured the skylight before disbanding the exclusion zone.
The penalty imposed upon Macmahon Mining services related to the death of a shift supervisor in 2013, who died when his head was caught at a pinch point between a section of a mine shaft and a work platform. Macmahon pleaded guilty to section 32 but was fined $75,000 in August of 2016.
The Attorney-General appealed against all three fines, arguing the manifestly inadequate nature of the financial punishment, and Court of Criminal Appeal Justices Margaret Beazley, Elizabeth Fullerton and Lucy McCallum heard the matters together.
In decisions delivered last week, Justices Beazley and Fullerton found the seriousness of Ceerose’s offending was significantly higher than that found by Judge Kearns. Following this finding, and the respective fines inadequate, the Court intervened by re-fining Ceerose $600,000.
“In my view, the seriousness of the [Ceerose’s] dereliction of duty as the principal contractor to the workers on site under its control and direction constituted objective seriousness for a category 2 offence at the high end,” Justice Fullerton said.
In the second case, involving DSF, Justices Beazley and McCallum rejected the Attorney-General’s appeal, finding the $225,000 penalty wasn’t manifestly inadequate when having regard to the limited scope of the PCBU’s operations, its genuine remorse and other matters.
Dissenting Justice Fullerton said DSF should have been re-fined $450,000, noting that it was aware that the skylight wasn’t secured, and the risk of death to the labour-hire worker was foreseeable.
In the third case, involving Macmahon, Justices Beazley and Fullerton found Judge Kearns erred in finding the objective seriousness of the offence fell at the “low end”, and re-fined the PCBU $375,000.
Industrial manslaughter laws are a topical issue ahead of this years election. The laws have already been introduced in the ACT and South Australia, and the Labor Party has pledged to introduce them in Victoria and in NSW, if successful at the March state election.