Record fine for company director following safety law breach12 June 2018
A company director in Western Australia has been fined a record $102,500 over a safety incident that seriously injured a teenage worker. His company, FGS Contracting Pty Ltd (FGS) was also fined $225,000 over the incident.
In May 2016, Ryan Wayne Franceschi and his 17 year old employee were installing a steel shed on a farming property. Franceschi was operating a telehandler that lurched forward when he failed to correctly halt its movement, causing a steel truss to fall and strike the young worker. The worker fell from the ladder he was working on and sustained severe injuries to his skull, jaw, shoulder and chest. He was not wearing a helmet or a harness at the time of the incident.
The Perth Magistrates Court found FGS had failed to take reasonable steps to provide the worker with a workplace free of hazards and was therefore in breach of the Occupational Safety and Health Act 1984 (OSH Act). It separately found Franceschi had neglected to ensure his employee had the required training and protective gear, the necessary construction induction training certificate (white card) and that he was negligent in his use of a telehandler. It was this negligence that resulted in Franceschi being charged under s 55 of the OSH Act. The $102,500 fine imposed on Franceschi is the highest ever imposed on an individual and more than double the previous record penalty of $45,000.
Following the OSH prosecution, Franceschi and FGS were fined an additional $5,000 each and Franceschi had his builder's registration cancelled by the Building Services Board for negligence in connection with a construction site.
Penalty increases imminent
Western Australia has the lowest maximum penalty in Australia at $500,000 (for a first offence), with all other jurisdictions having a comparable maximum of $3 million. The Occupational Safety and Health Amendment Bill 2017 is currently before Parliament and when it comes into effect—anticipated to be later this year—will increase penalties for offences under the OSH Act to align with the rest of the country.
Modernised safety legislation on its way to WA
The State Government is also working on a draft Work Health and Safety Bill based on the national harmonised WHS Act, which is expected to be introduced to Parliament in 2019. As with the harmonised jurisdictions, the Bill is expected to include officer due diligence obligations requiring officers to take specific pro-active steps to ensure safety within their organisations.
The impending changes to the safety landscape in WA, together with the Court's willingness to issue increased penalties to individuals, means it is more important than ever for officers to assess their own conduct and take any steps necessary to ensure they are doing all that is reasonably practicable to ensure the safety of their workers.