A recent case heard before the South Australian Employment Tribunal saw the prosecution of an employer for an offence under Section 19(1) of the Occupational Health and Safety Welfare Act 1986, following the fatality of an employee who was crushed to death while performing maintenance work on machinery. 

Of particular interest were the Judge’s comments on sentencing, as we have seen a huge variation of fines imposed by the courts with regard to breaches of Work Health and Safety legislation. The sentencing legislative framework is provided by the Criminal Law Sentencing Act 1998, which contains limiting provisions when sentencing, including potential monetary fines.

For example, a magistrate is only empowered to impose a fine of up to $300,000. The court must also consider sentencing objectives, which include the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question), the deterrence of the person from offending, and rehabilitation/reform.

While the maximum penalty may in some cases can indicate how seriously the community views such offences, each case is handled on its own merits.

The court will consider leniency after taking the seriousness of the offence into account, such as the implementation of any safety measures and risk assessments at the time of the incident, and the steps the defendant has taken following the incident to “bridge the gap” in terms of their safety-system processes that led to the breach.

This may mean the implementation of improved safety policies, appointing more staff to oversee Work Health and Safety in the workplace, establishing WHS committees, and introducing further training for workers. The court will ultimately consider whether the defendant has learnt from the incident and their approach to Work Health and Safety. The court will also have regard to any previous convictions the defendant may have for a similar offence. The weight attributed to the prior offence will depend on its severity and whether the circumstances are comparable to the current incident before the court.