Sparke Helmore Lawyers special counsel Sam Jackson and senior associate Gina Carosi said in an article on the firm’s website that the case is a “significant development” for employers, as well as employees, in that jail sentences for breaches of workplace health and safety (WHS) rules had traditionally been suspended.
“We are not aware of any other person having previously received a non-suspended custodial sentence for a breach of a WHS duty provision in any Australian jurisdiction,” the lawyers said.
“Individuals in Queensland and Victoria have previously received suspended custodial sentences for breaching WHS duty provisions, and individuals have received custodial sentences after being charged with manslaughter following serious workplace incidents.”
According to the article, the case — currently the subject of an appeal — “adds further weight” to the belief that penalties are increasing “significantly” for safety failures.
“This trend is supported by recent data published by Safe Work Australia showing that in 2016–17, the total value of all court-ordered WHS fines increased by 8 per cent, despite a 24 per cent decrease in the number of WHS prosecutions commenced compared to recent years,” they said.
“We expect this trend will continue in 2019.”
The lawyers noted that both Victoria and Western Australia have increased the maximum penalties for workplace safety breaches, while Queensland in 2017 introduced a new offence of industrial manslaughter.
What was the case about?
The case in point was that of 72-year-old Maria Jackson [no relation to Sparke Helmore Lawyers’ Mr Jackson], the owner of a second-hand goods and recycling business in southern Victoria.
According to WorkSafe Victoria, the business was the site of a fatal accident on 18 February 2017, when scrap metal was being transferred from a 1.8-metre metal bin into a six-metre metal bin.
The regulator said that Ms Jackson had been operating a forklift at the site — despite never having held a licence to operate one — with the 1.8-metre bin raised by around three metres on the forklift, with an employee inside.
The raised bin, described as being in poor condition, had only one channel, despite the requirement for it to have two, and it was not secured to the forklift. The load was also unbalanced, with the tynes not centred and not spread at their maximum width, with the forklift being operated on uneven ground.
Tragically, the worker inside the bin fell and was then hit by the bin when it fell off the forklift, and died at the scene.
Ms Jackson pleaded guilty to charges of failing to provide a safe system of work and recklessly engaging in conduct that placed another person in the workplace in danger of serious injury.
Latrobe Valley Magistrates Court issued its judgment on 19 December 2018, in which it sentenced her to six months’ jail as well as a $10,000 fine and ordered her to pay costs of a further $7,336.
Ms Jackson is appealing the sentence.