It is astounding, with the obvious high risks associated with working at heights, employers continue to allow their employees to work without having even the basic controls. As a result, regulators around Australia are taking a tougher stance against employers who are deliberately or recklessly putting their employees at risk. Judges are showing less and less leniency to employers who have no safety controls to prevent the risk of falls from height. This was most recently demonstrated in the case of WorkSafe WA v MT Sheds (WA) Pty Ltd, where both the Director and company received the highest fines and sentences under WA’s previous OHS laws.

MT Sheds had engaged two workers to install roof sheets on a shed. There were no safety controls in place – the workers were not harnessed, there was no scaffolding and the workers themselves were not qualified or competent to perform the work they were assigned. On the day they were carrying out the work, a strong gust of wind lifted the roof sheet resulting in the two workers falling seven and nine metres respectively, leading to one fatality.

Collectively MT Sheds and their Director were charged with 7 different charges including:

• Gross negligence;
• Failing to ensure employees had high-risk work licences;
• Failing to ensure one worker had a white card; and
• Failing to provide a safety harness for high risk work.

Unsurprisingly, both pled guilty and were fined $605,000 for the company and $2250 for the Director. The Director was also sentenced to two years and two months imprisonment (he was required to serve eight months immediately with the rest being a suspended sentence for 12 months) for Gross Negligence (the equivalent of reckless endangerment in other jurisdictions). MT Sheds is the second company to have been charged under the gross negligence provisions in WA.

The fines and sentence were issued under the Occupational Safety and Health Act 1984 (WA). WA has finally introduced harmonised legislation to reflect the model legislation and the Work Health and Safety Act 2020 (WA) is now in place. The new legislation imposes obligations on officers, such as directors, to actively take steps to ensure they are compliant with their primary duty to provide a safe workplace. The Act introduces industrial manslaughter imposes higher sanctions of up to $5 million fines for individuals and $10 million for companies, and up to 20 years imprisonment for officers.

Key Lessons for employers

• Regulators (in and outside of WA) are inspecting work performed at heights, and employers must implement adequate safety controls
• Any work involving heights is high risk – SWMS must be completed
• Ensure employees are competent and possess correct qualifications and experience to carry out high risk work
• Have regular toolbox meetings to identify any risks from SWMS and reiterate to workers need to implement safety controls