In a first for Western Australia, an employer has been found guilty of gross negligence. This is WA’s version of reckless endangerment. It is the most serious offence possible under the Western Australian work, health and safety laws and has a test that enjoys some verisimilitude to our industrial manslaughter laws. As with workplace manslaughter in Victoria, it requires a finding of a duty breach, and knowing of the risk of death (like in Reckless Endangerment) and or serious harm and disregarded it. So closer to reckless endangerment in its elements but still close. Under the amended legislation in WA, the fine could now be over $3m.

In this case, a labour hire worker responsible for removing items from conveyor belts and eliminating jams at the waste recycling facility. The worker had just finished clearing such a jam on one machine which had been restarted when he reached back into the machine to clear a rock. The worker’s arm was subsequently dragged between the belt and roller. The substantial injury meant that his arm had to be amputated. Resource Recovery Solutions Pty Ltd was charged with breaching s 19 of the Occupational Safety and Health Act 1984 (WA), for their breaches in circumstances of gross negligence.

An investigation of the site revealed that the crush points of the conveyor belt were unguarded. Further the employer failed to implement a procedure to lock-out and isolate moving parts when jams were being cleared.

The threshold for proving gross negligence is significantly higher than proving a normal breach, the Regulator was successful in this case due to the company’s repeated breaches of the OSH Act. The Magistrate was clear that Resource Recovery Solutions Pty Ltd had a clear disregard for safety that “went well beyond mere neglect.” They had shown a complete disregard for the safety of their workers, evidenced by the fact that they before the accident occurred, they had advised WorkSafe that they had installed guarding in accordance with an improvement notice.

The employer is yet to be sentenced, but they risk a fine of up to $500,000.

If this case was being prosecuted in Qld, Victoria or ACT, it is very likely they would have been charged with Industrial (Workplace in Victoria) Manslaughter.

Key Lessons

• Do not lie to the Regulator
• Comply with all improvement notices
• Have proper guarding around all conveyor belts