Cases may open prison door
TRUCK operators are faced with imprisonment, following jail sentences and million-dollar fines in recent months.
Prosecutions for reckless behaviour causing death have resulted in the nation's most severe sentences of fines and imprisonment for the first time under workplace safety legislation.
The principals of two businesses, one in Queensland and one in Victoria, received prison sentences in December and last moth respectively, with accompanying fines of up to $1 million.
These are the first prison sentences for causing death through reckless behaviour delivered in Australia under occupational health and safety legislation, opening the way for similar sentencing under the Heavy Vehicle National Law.
Prison terms have resulted from worksite deaths previously, but they have always been for charges of manslaughter brought by police and criminal prosecution.
The two recent matters were brought by WorkSafe in Victoria and Workplace Health and Safety in Queensland.
With the recent amendments to the HVNL enacted late last year, the national transport legislation was brought significantly in line with Occupational Health and Safety legislation throughout Australia.
It is not a long bow to draw to see courts using these precedents of sentencing procedure under workplace legislation being implemented in almost identical law and charges under the HVNL.
What does this mean for transport operators?
If a workplace death in the transport injury can be shown to be the result of reckless behaviour or endangerment by a supervisor, charges can now result in major fines and imprisonment.
Those large numbers and threats of imprisonment in the Heavy Vehicle National Law are no longer just decorative dogs barking in the hundreds of pages of legislation.
The recent sentences mean that these penalties are now facts of life in the sentencing processes of workplace safety legislation.
Sentencing milestones: Qld
In Queensland a roofing contractor was sentenced to 12 months' imprisonment and a $1 million fine.
Roofer Whareheera Keepa te Amo died after a near 6m fall from a roof he was working on in the Queensland town of Cooroy, a 90-minute drive north of Brisbane.
Principal of Multi Run Roofing, Gary Lavin faced a week-long trial in the Maroochydore District Court.
The jury found both Lavin and his company guilty.
Summing up after the verdict, District Court Judge Glen Cash QC said Gary Lavin had tried to maximise profits by not investing $5000 for safety railings even though this cost was allowed for in payment for the job.
"Your conduct was so serious you must serve a period of time in custody,” Judge Cash said.
Lavin was charged under section 19 (2) and section 20 of Queensland's Work Health and Safety Act of 2011.
In Victoria last December, 72 year-old Maria Jackson pleaded guilty to two charges of Reckless Endangerment under the Victorian Occupation Health and Safety Act.
Jackson was charged with 'Failing to comply with her duty as a self-employed person not to expose other persons to risks arising from her undertaking' and recklessly engaging in conduct that places or may place another person who is at a workplace in danger of serious injury.'
Maria Jackson owns a scrap metal and recycling business in Foster, 174km southeast of Melbourne.
In February she and another person were transferring scrap metal from one bin to a larger bin.
Jackson, who did not have a forklift licence, was driving a forklift, lifting the smaller bin to where the other person could transfer scrap metal to the bigger bin.
The smaller bin was not attached to the tines of the forklift, and, operating on uneven ground, both bin and worker fell and the man was crushed by the falling bin and died as a result.
Maria Jackson pleaded guilty in the Latrobe Valley Magistrates Court, where she was convicted and sentenced to six months' imprisonment and fined $10,000.
Both the Queensland and Victorian cases are seen as Breaches of Duty in a workplace.
Breaches of Duty under the various forms of OHS legislation have never attracted as severe sentencing as these cases.
Widespread legal opinion views these sanctions as paving the way for governments, state, territory and Commonwealth, to seek harsher penalties for individuals and companies who have breached a duty under workplace safety legislation.
The key phrase in these types of charges distils down to death or injury caused breach of duty by reckless behaviour.
The shift in legal thinking means harsher penalties can now be sought by government work safety and transport departments for breaches involving reckless behaviour.
And the way is now open for prosecutorial bodies such as the National Heavy Vehicle Regulator to seek heavy fines and jail sentences under the Heavy Vehicle National Law.
With custodial sentencing precedence now in lower courts presided over by magistrates, all of a sudden jail time is much closer to transport operators who make these breaches of duty.
These latest cases could see prosecutions under Chain of Responsibility laws in the HVNL, with maximum penalties of up to $300,000 or five years' imprisonment for an individual causing death through reckless behaviour or risk taking, becoming a reality.
A company committing the same offence faces a maximum penalty of $3million.
The HVNL legislation and penalties closely copycat the Queensland Work Health and Safety Act.
It is plain to see the intent in the parallel nature of the two pieces of workplace legislation and it is similar throughout all states and territories.
Only a matter of time before prosecuting agencies join the dots and use the precedence of the recent custodial sentences in tragic matters that may occur under the Heavy Vehicle Law.
In the NT and WA, jurisdictions who have not signed up for the National Heavy Vehicle Regulator and the Heavy Vehicle National Law, there is already a long time dependence on the OH&S legislation to police these breaches.
And there is no stretch of the imagination needed to see how similar tragic circumstances to the Gary Lavin and Maria Jackson cases could occur under pressure in a transport operation.