A WA director has received the longest jail sentence on record for a WHS matter following gross negligence which led to a worker’s death.

The director of MT Sheds, a Western Australian company, has become the first employer to be sentenced to jail for a workplace health and safety incident under WA’s workplace health and safety laws. He was convicted after pleading guilty to a charge of gross negligence that resulted in the death of a 25-year-old worker, and seriously injured another, in March 2020.

For background, in October 2018 the Western Australian government bolstered its occupational safety and laws following decade-long calls from unions and the families of victims of workplace accidents resulting in death. Under these laws, MT Sheds faced a maximum penalty of $2.7 million and the director faced a maximum penalty of a term of imprisonment for five years.

This week the Esperance Magistrates Court made a first-of-its-kind decision in sentencing the director to two years and two months in jail. He has to serve the first eight months immediately – the remaining sentence is suspended for 12 months. He will be eligible for parole at the four-month mark.

On top of this, his company has been fined $605,000 for safety breaches and the director has also been instructed to pay a personal fine of $2,350 for operating a crane without a licence.

Worksafe WA commissioner Darren Kavanagh told the ABC, that this penalty should act as a “significant deterrent” and be a “moment of awakening” for employers who don’t prioritise health and safety.

“This will really make people sit up and listen… especially when you consider the jail time,” says Sue Bottrell who has been working in health and safety for 20 years, and as a WHS lawyer for the last 13 years. 

What actually happened?

In March last year, two workers were installing a roof on a building near Esperance, on the south coast of Western Australia. A strong wind picked up and a roofing sheet came loose, knocking both workers off the roof. 

One of them fell nine metres to the ground, which resulted in his death. The other was luckier, falling just seven metres. However, he still sustained serious injuries.

There’s no argument that this is a tragedy, but you might be wondering why the director is liable. He wasn’t on the roof. He didn’t loosen the roofing sheet. He didn’t summon the strong winds. But he also didn’t do everything reasonably practicable to ensure the workers were not exposed to harm due to the hazard of working at heights.

Neither the employees or the director held the relevant high risk work licences to operate the mobile plant (a mechanism to lift materials, in this instance), and the worker who died was allowed to continue working when he didn’t hold a construction induction training certificate.

“These are not hardened criminals. They are people like you and me. A jail sentence is a huge deal.” – Sue Bottrell, lawyer and WHS expert

Greg Smith, director at Wayland Legal in Perth, the lawyer who represented MT Sheds in this case, says, “If the workers had received training in working at heights and had held all the appropriate licenses, it may have made a difference to the penalties.

“Ultimately, however, the case was about people working at height without measures in place to prevent them falling, or to mitigate the consequences of falling.”

As Bottrell puts it, this work was MT Sheds’ “bread and butter”; they did it often (around 30 per cent of the company’s work involved erecting sheds and 70 per cent involved fabrication work in a workshop).

This, paired with the lack of licensing, was likely the reason behind the substantial sentence, she adds.

While Bottrell doesn’t think a lack of licensing is a widespread issue, she does note that it can be administratively difficult to track licences and “employers probably rely on employees to update their licence”. 

“I don’t think it’s that people don’t care [about being licensed]. It’s just not administered properly. Their licenses expire and they just don’t get them renewed, and no one is checking.” 

A lack of licensing also proved to be a critical factor in Australia’s first ever industrial manslaughter conviction, which happened at a recycling plant in Brisbane last year.

In this instance, a 58-year-old casual contractor was killed during a forklift accident. However, the company directors had their jail terms suspended when the presiding judge took into account their “clean records and personal circumstances” (they risked deportation if they faced jail time). Their company, however, was hit with a $3 million penalty.

The presiding judge noted the company would be unable to pay such a significant fine, however he said “that does not preclude the imposition of an appropriate fine in the circumstances [as anything less] would not adequately punish [the employer] or serve to adequately deter others”.

Just like you and me

These issues are particularly complex, says Bottrell, as there’s almost always a lack of intent from the perpetrator.

“These are not hardened criminals. They are people like you and me. A jail sentence is a huge deal, as it potentially should be. We can’t underestimate the impact of this. Eight months is no small stint.

“This man’s life is ruined. He won’t be able to be a director of a company again and he’ll have a criminal record. His life is absolutely ruined, as is the family of the boy, and I take nothing away from that.”

While Smith can’t comment on the specific details of the case, he does think it’s important to consider its broader impact.

“This was a terrible tragedy for everyone involved and while I cannot speak for the families [of the worker who died], and would not pretend to understand their suffering, I have seen first-hand on this occasion, and many other occasions, the shockwaves of workplace accidents that extend beyond the immediate victims to the wider community,” he says.

“The people who are prosecuted for breaches of health and safety obligations after a fatality, regardless of their level of culpability, in my experience, carry the guilt and the memory of the accident for the rest of their lives. It is no different in this case.”

Not an isolated case

MT Sheds isn’t the only case of WHS-related deaths in the news at the moment. 

In 2017, another young man was killed on the worksite when a concrete panel weighing between 750kgs and 1.1 tonnes was left leaning against a row of tree stumps and fell onto the 19-year-old worker.

The company, Gran Designs, also based in Western Australia, was fined $175,000 this month after pleading guilty to five charges of failing to provide a safe workplace and a number of safety breaches, including not enforcing workers to wear helmets, not preparing a safety management plan (a safety plan for the overall job) and not having a safe work method statement (a safety plan for the specific high-risk tasks on each job).

So why no jail time? 

“What we call the factual matrix is really different in both cases,” says Bottrell. “In the Gran Design case, the director of the company engaged contractors to deliver the panels that fell on the young fellow. So there was [some] responsibility on the contractor to make sure they delivered and stored those panels [properly].” This isn’t to say that the employer didn’t also have a responsibility to ensure the safety of its workers (the $175,000 it copped is proof of that), it just might explain why the outcomes in both the MT Sheds and Gran Designs cases were different – the responsibility was spread across various parties involved in the latter case.

Gran Designs also did the right thing by having an expert contractor perform the lifting and storing of the panels, she adds, which is highly technical work. 

Bottrell puts the failings in Gran Designs down to poor planning, whereas she believes MT Sheds was more a failure to implement basic and well-known safety practices.

“From the facts that I understand about MT Sheds, the worker who was killed was under the direct instruction of [his employer]. They had to make sure all the safety measurements were in place. They knew the risks. The obligation was clearly on them to take steps to control the risks.”

Bottrell isn’t out to demonise MT Sheds. She understands there are often other factors at play that might not make it into the public conversation. However, there are also well-known actions to control risk when working at heights.

“There are easy [preventative] measures available: roof perimeter protection, edge protection, travel restraints, for example. There’s also a code of practice for working at heights. This stuff is pretty much safety 101. So on the face of it, the failings seem to be on a pretty basic level. 

“To me, that’s a big reason why their penalty might have been so harsh. However, a young man has died here… so what is harsh, really?”

How will the states and territories respond?

Five Australian states and territories (ACT, QLD, NT, WA and VIC) have passed industrial manslaughter legislation, and a bill was introduced in South Australian parliament in 2019 which is yet to be passed. Tasmania is the only state not to have legislation on the matter.

In Western Australia, new industrial manslaughter legislation was introduced in November 2020 as part of the WHS Act 2020 (WA), but this has not commenced operation. Under the industrial manslaughter provisions, company officers will face up to 20 years in jail and $5 million fines when safety breaches in circumstances of gross negligence result in the death of a worker. Companies will face fines of up to $10 million.

“The people who are prosecuted for breaches of health and safety obligations after a fatality, regardless of their level of culpability… carry the guilt and the memory of the accident for the rest of their lives.” – Greg Smith, Director Wayland Legal

These tragic accidents can unfortunately happen anywhere if safety provisions aren’t followed, but will the MT Sheds case cause other states and territories to offer harsher penalties? Smith and Bottrell both think so.

“Most other jurisdictions do [already] take a strong stance on WHS matters,” says Smith. “It’s likely that if the same incident occurred in other jurisdictions a similar outcome would result.”

Bottrell adds: “As fines and jail times go up in one state, it will absolutely have an influence on how other states react.”

These instances aren’t isolated to obvious industries such as construction either. Any workplace death that could have been prevented will be examined under the same legislation. So how can you protect your business?

Keep the following things in mind, says Bottrell:

• Do a risk assessment to determine if there’s a serious danger posed to workers in particular situations. Ensure you have processes in place to mitigate that risk.
• This legislation is targeted at people who own and run companies, not frontline workers. However, everyone has a duty of care to ensure workplaces are safe.
• Each state regulator offers support and information for small businesses, so that’s a good place to start your education. They often also offer free advice. For example, in Victoria there’s a free resource called ‘OHS essentials program’ offered by WorkSafe Victoria.
• There are safety professionals through the Australian Institute of Health and Safety who are available to offer advice. You don’t need to employ someone on a full-time basis, but you can get help from a consultant.
• When you see a lawyer, make sure they have a strong background in health and safety and aren’t just a commercial lawyer. It’s a technical field, she says, and the person representing you should have specialist skills.

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