More and more officers are being held directly responsible for primary breaches of safety. The Regulators are actively pursuing directors and officers who had knowledge and involvement in safety contraventions as a lesson to all employers.
Remember under section 144 of the Occupational Health and Safety Act 2004 (VIC), officers will be found guilty of an offence if the contravention by the body corporate is attributable to the officer. If there is a sufficient causal nexus then the officer can be held directly responsible. There are similar derivative due diligence obligations in all health and safety legislation in Australia. Victoria and NSW require a subjective knowledge of the risk whereas all WHS jurisdiction have an objective test of what officers ought to know.
In a recent case, WorkSafe charged Valley Sweep Pty Ltd with a primary breach of failing to provide and maintain plant that was, so far as was reasonably practicable, safe and without risks to health. The company’s director was also charged with breaching section 144 as the primary breach was related to his conduct.
A young driver had been killed only several weeks after he started, when the truck he was driving rolled and crashed as a result of poorly maintained brakes. The truck had not been properly inspected and serviced for two years. Instead the Director and one of his employees had been implementing all the maintenance work and repairs even though they were unqualified to do so. On top of keeping a dangerous vehicle, the Director did not provide any formal training to the young driver which could have reduced the possibility of the accident.
The director’s reckless actions led the Magistrates Court deciding to impose the maximum fines available which totaled $77,730 for the director and $388,650 for the company.
Lessons
- Officers will be held directly responsible if they had knowledge of the breaches. Ignorance is not an excuse you must ensure you put proper controls in place.
- Safety short cuts will not save you and they are likely to aggravate any potential fine from the Courts
- Regular safety audits will help you familiarise yourself with any risk and assist with implementing a range of controls to mitigate and avert the risk from eventuating
Written by Nina Hoang
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