A recent safety prosecution involving a liquidated company, and the first person charged as an "officer" under the harmonised WHS laws, has highlighted one of the main reasons the officer provisions were included in the new legislation, according to the ACT regulator.
ACT employer Kenoss Contractors Pty Ltd, now in liquidation, was recently found guilty of a category 2 offence under s32 of the Territory's mirror WHS Act following the March 2012 electrocution of a tip truck driver.
The Industrial Magistrates Court heard the man delivered a load of road-making material to a Kenoss-controlled construction site and decided to unload it in an unsigned and unsupervised area where other materials were stored.
Unfortunately, this area was directly below power lines, and he was killed when the back of his truck came into contact with them.
A former Kenoss manager was also charged over the incident – becoming the first person to be charged under Australia's WHS officer provisions – but was acquitted in the same proceedings.
According to WorkSafe ACT, the prosecution considered that the manager was an officer – as defined in the Commonwealth Corporations Act 2001 – because he made or participated in making decisions that affected the whole or a substantial part of the business.
The Industrial Magistrate found the prosecution failed to prove the manager held this position or exercised this level of control. It was also noted that the manager appeared to breach the duties of a worker, but wasn't charged as one.
If convicted as an officer, the manager would have faced a maximum penalty of $300,000.
Kenoss, which is expected to be sentenced in August, faces a maximum penalty of $1.5 million, but won't pay the eventual fine because it is now defunct.