Recklessness charges add new dimension to employer WHS issues

The growing incidence of recklessness charges is adding a new dimension to the WHS issues that employers must be alert to. Although there is still no established system for the publication of information about work health and safety prosecutions across all jurisdictions, there have been four prosecutions in the past year in Queensland and one in Victoria. It is not clear how many there have been in NSW.

In Queensland, recklessness charges — also called Category 1 offences — are set out in Section 31 of the model work health and safety laws.

According to Safe Work Australia, “The model WHS Act forms the basis of the WHS Acts that have been implemented in most jurisdictions across Australia”. With Western Australia’s adoption of the laws in 2022, Victoria is now the only exception to the national framework. Its goal is, according to Safe Work Australia, to have “a balanced and nationally consistent framework to secure the health and safety of workers and workplaces”.

For WHS duty holders, there are three elements to recklessness that must be made out by a prosecution:

• A person has a health and safety duty.
• A person, without reasonable excuse, engages in conduct that exposes an individual, who is owed a duty, to a risk of death or serious injury or illness.
• A person is reckless as to the risk to an individual of death or serious injury or illness.

What these elements highlight is that recklessness is broadly defined.

In Queensland, for example, the industry consensus is that the pickup in prosecutions is related to the introduction of industrial manslaughter charges that took effect in October 2017.

What this has allowed when a fatality occurs is for a person to be charged with industrial manslaughter in the first instance, and then with a Category 1 offence as an alternate charge, thereby allowing for the use of plea bargaining.

For the person charged, it has the obvious benefit of them being found guilty of a lesser charge, with penalties ranging from $2,000 to four-month gaol for those recklessness cases that have come to court. By contrast, maximum penalties for industrial manslaughter can be up to $14,375,000 or gaol time of up to 20 years.

For employers, and due to the fact those being charged with recklessness have typically been pleading guilty, there has been a dearth of legal explanation as to how a decision has been reached.

On 25 November 2022, the NSW District Court sentenced a scaffolding company to a fine of $2 million for recklessness. This followed a guilty plea made by the employer for conduct connected with the collapse of a scaffolding structure that led to the fatality of a worker and the serious injury of another.

In October 2021, a business that manufactures and supplies ready-mixed concrete aggregates and sands on Queensland’s Sunshine Coast was fined $500,000 and its director was sentenced to six months gaol by the Maroochydore District Court. Both the company and the director pled guilty to recklessness charges following an incident where a worker was injured while performing work at heights out of a wheel loader’s bucket. Even the various health and safety regulators have been relatively quiet on the issue.

As a consequence of the jurisprudence being slow to develop in relation to the courts’ interpretations of the provisions relating to a charge of recklessness — the only relevant significant jurisprudence relates to sentencing of recklessness offences, not the substantive points of law involved in the offences — it’s likely that the regulators have been slow to lay charges of recklessness.

From their perspective, they are more comfortable laying charges where they can recite some judicial commentary in support of their case — it is much more difficult to go through the exercise of defining, explaining and applying a charge from scratch than it is to simply quote a judge’s explanation.

But employers can expect this to change as more appeals are made, considered decisions published, and regulators have greater confidence of launching a successful prosecution for recklessness. This process will no doubt be expedited by the fact that most jurisdictions now have the model laws, and other jurisdictions to rely on precedence.

Liam Fraser is a partner at Kingston Reid.

Note from the editor: This article has been prepared for informational purposes only and is not to be construed as advice (legal or otherwise).