The Victorian Court of Appeal has called for the maximum penalty for reckless endangerment to be increased as a matter of urgency to match the newly revised fines in other states.
The call comes after the Court of Appeal issued the maximum legal penalty to a drilling company that was found to have recklessly endangered one of its workers, resulting in the death of a 21-year old employee. The company director of Orbit Drilling Pty Lty was fined an additional $120,000 for his role in breaching the duty of care towards the employee. In their judgment, the judges noted that the corresponding provision in New South Wales (which includes, in addition, reckless exposure to a danger of death) carries a maximum fine of $3m.
The employee was killed as a result of insufficient training to operate the truck he was driving – the worker had been employed by the company for just over a week and had completed only 11 hours of driving lessons. The court found that the incident which resulted in the employee’s death would have been avoidable with a more experienced driver behind the wheel. “By its plea of guilty the company admitted that, at the time the site manager required [the employee] to drive the truck on the steep slope, the company was aware that requiring him to do so would probably place him in danger of serious injury,” the judges ruled.
Despite being aware of the risk, the company nevertheless proceeded to require him to carry out the task. The judges said the company acted indifferently to the probable danger, and the company recklessly disregarded a known risk of serious injury to its employee.
HR takeaways – New WHS legislation in NSW, QLD, ACT & NT
Despite the newly increased penalties for breaching the Workplace Health and Safety Act, many businesses are ill-prepared and have not properly addressed the legislative changes.
Sydney employment law firm Kemp Strang highlighted the following key points to ensure workplaces are abiding by the new regulations:
Employers are expected to do all that is ‘reasonably practicable’ to ensure safety – defined as “That which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety”
Employers must weigh up (without limitation):
- the likelihood of a hazard/risk occurring
- degree of potential harm
- what the person concerned knows, or ought reasonably to know, about the hazard/risk and ways of eliminating / minimising it
- the availability and suitability of elimination / minimisation methods
- after all of the above, the costs
The laws affect any person conducting a business or undertaking (PCBU) and include all employers, principal contractors, self-employed persons, franchisors, partners and others. A PCBU must ensure, so far as is reasonably practicable, the health and safety of:
- Workers (engaged, influenced or directed) while at work
- Other persons who may be impacted by work carried out as part of the business or undertaking
There is a four-step ongoing process that employers can follow to guide their WHS adherence, namely:
1. Identify all hazards and risk
How to control? Use a three-step scale:
1. Eliminate risks and hazards wherever possible – it is only if you can’t eliminate the risk that you should proceed down the scale eg. Instead of employees lifting boxes, can you provide a trolley?
2. Substitution. Isolation. Engineering controls eg. Can you provide safer equipment? Can you separate employees from the hazard or risk eg. erect a barrier?
3. Administrative controls (induction briefings, signs) and personal protective equipment (PPE) (last resort measure, only when no other control method is possible)
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