What constitutes a breach of the WHS Act?

What constitutes a breach of the WHS Act?

By Gaby Grammeno on 26 September 2018 Our understanding is that there are three different categories of breach of the model WHS Acts. What sorts of actions are examples of each these? 

This question was recently sent to our Ask an Expert service.

A The three categories of offences for failing to comply with a WHS duty reflect different degrees of seriousness or culpability, the foreseeability of the adverse consequences of the breach and the degree of reckless disregard shown by the employer for the safety of workers.

Category 1 offences


Where a person recklessly engages in conduct that exposes an individual to a risk of death or serious injury or illness, this is considered a Category 1 offence. 

An example of a Category 1 offence is a NSW case in which a person was electrocuted and died as a result of non-compliant electrical work at a limestone quarry. An electrical switchboard had been improperly installed by an unqualified person and used in conjunction with damaged electrical components.

The court considered the quarry operator had been reckless as to the risk of serious injury or death, and that there had been a number of reasonably practicable steps that could easily have been taken by the company to eliminate or minimise the risk. 

Category 2 offences


Where a person’s failure to comply with a health and safety duty exposes an individual to a risk of death or serious injury or illness, it is considered a Category 2 offence. Note that the element of recklessness is missing.

An example of a Category 2 offence is a case in South Australia in which a temporary migrant worker fell into a bath of caustic soda and suffered severe burns. The magistrate noted that there were many reasonably available and inexpensive steps the labour hire firm that employed the man could have taken to prevent the incident.

These included:
  • making enquiries about tasks he would be required to carry out
  • checking specific foreseeable hazards and resulting risks of injury, together with the adequacy of hazard control measures
  • ensuring the host employer provided and maintained appropriate written safe operating procedures
  • providing the worker (whose first language was not English) with a written translation of all relevant safety and work instructions
  • ensuring he was told of the dangerous chemicals he was to work with, and,
  • having a system to assess the effectiveness of the training and supervision provided. The magistrate did not attribute recklessness to the employer.
The magistrate did not attribute recklessness to the employer.

Category 3 offences


A Category 3 offence is committed where there is a failure to comply with a health and safety duty but there is no element of reckless disregard and the potential consequences do not include death or serious injury or illness.

An example of a Category 3 offence is a Queensland case in which a worker fell from a step ladder while trying to clear a blockage in a commercial oven. The possibility of falling from the step ladder did not foreseeably expose the worker to a risk of death or serious injury or illness, and the court did not consider this a case of reckless disregard for the worker’s safety.

Whether a particular case is considered a Category 1, 2 or 3 offence depends on the specific circumstances of the case, the foreseeability and seriousness of the outcome, and the view taken by the court as to whether the employer showed a reckless disregard for workers’ safety.
 

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