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Penalty increases under WHS Act
Thursday, 13th November, 2014, by Joanna Weekes
In today's Health & Safety Bulletin:
  • How the WHS Act compares to previous legislation
  • Case Study: Business fined double under WHS Act
Dear Reader,
As you are probably aware, the Work Health and Safety Act 2011 (WHS Act) commenced operation at the start of 2012, and applies to all States and Territories except Victoria and Western Australia.
The WHS Act is designed to provide similar standards of health and safety legislation for businesses across the board, regardless of location. In some cases, this can mean tougher maximum penalties than under the previous legislation.
Today, Michael Selinger, editor-in-chief of the Health & Safety Handbook, outlines a real-world example that shows the difference between the WHS Act and the previous health and safety legislation in NSW when an employer was fined double the amount for the same offence. Read on to find out more.
But before you do…
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See you next week,
Joanna Weekes
Joanna Weekes
Health & Safety Bulletin
Any process that may pose a safety risk in your workplace must have a safe operating procedure.
Case Study: Business fined double under WHS Act
By Michael Selinger
Editor-in-Chief, Health & Safety Handbook
In NSW, two prosecutions of the same employer in the District Court have provided a clear insight into how maximum penalties under the new WHS laws compare to penalties under the former OHS laws that applied in NSW. The District Court has also made clear that an employer must be diligent in removing risks, particularly if it has been put on notice following a similar incident.
In the two decisions, both called WorkCover NSW v Fletcher International Exports (2014), the business pleaded guilty in regard to two similar incidents, one occurring under the former Occupational Health & Safety Act 2000 (NSW) and one under the new Work Health & Safety Act 2011 (WHS Act).
In the first case, the business was prosecuted for an incident in June 2011 when it failed to ensure that a nip point on a conveyer belt at its abattoir was properly guarded and that there was an emergency stop switch placed within the worker’s reach. In that case, a cleaner was injured when they became trapped in the conveyor and could not switch it off immediately. The Court imposed a penalty of $75,000 out of a maximum penalty of $825,000.
In the second case, the business was prosecuted for an incident in June 2012, after the harmonised WHS Act had commenced operation. In a similar situation, a cleaner who was retrieving a bone that fell between parts of the conveyor had his hand jammed between the belt and a fixed part of the system, fracturing his wrist. He was not able to turn the conveyor off because the emergency stop switch was out of his reach.
While there was found to be no institutional failure to manage safety risks, the Court considered the extent of the injuries was greater because of the failure to install the emergency stop switch in accordance with Australian Standards. The Court also made clear that after the 2011 incident, the business had been on notice that some similar injury may occur and that the possibility of injury without appropriate stop switches was “imminently foreseeable”.
In considering what penalty should be imposed for the second incident, the Court noted that the maximum penalty had increased to $1.5 million under the WHS Act. The Court determined that given the increase in the maximum penalty and the fact that a similar incident had happened before, the employer should be fined $150,000 for the second incident.
Although the fine for the second incident included a component for the fact that the employer had not done enough since the first incident, it also demonstrates that under the new laws penalties are likely to be significantly higher, given the statutory increase in maximum penalties.
These cases serve as an important warning to employers to be particularly active and alert following any incident at the workplace and to ensure that steps are taken to implement effective controls, which will prevent any similar incident from occurring again.
Warm regards,
Michael Selinger 
Health & Safety Handbook

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