Preventing Reckless WHS Conduct
Legal proceedings against a PCBU and two workers have just been commenced in NSW for alleged reckless conduct that caused the death of a local resident. This is the first WHS prosecution in NSW for a reckless conduct offence. It carries a potential for imprisonment of up to 5 years or a maximum fine of 3 million dollars or both for a PCBU.
This article seeks to shed light on what is reckless conduct, and what a PCBU could do to help prevent reckless conduct happening in their workplace.
What is Reckless Conduct?
In 2012 in a prosecution in Victoria, the Supreme Court* took the view that "recklessness involves acting with indifference towards or in disregard of what is realised or foreseen to be the probable consequences of the relevant conduct.”
In effect they decided that conduct is reckless if the PCBU or other person is aware that their conduct would probably result in exposing a worker or other person to danger of serious injury/illness or death but take no action to prevent that. The conduct becomes a legal offence when a worker or other person is exposed to the danger.
The meaning of “reckless conduct” has not yet been dealt with by a NSW Court.
What is an Example of Reckless Conduct?
In the 2012 Victorian case the Court concluded that the PCBU’s conduct was reckless because the truck driver had been directed to operate the truck off-road on a steep slope despite knowing that the driver had not been trained for that work and knowing that the truck was not safe to drive. The truck driver:
- Was a recently qualified as a Mack truck driver
- Was not trained in gear selection for the off-road conditions he was working in
- Was not given an induction or any safety training
- Was not given the chance to build up his heavy vehicle skills under supervision
- The truck’s primary brake and emergency brake were not working
- The truck had not been serviced for 6 months
What is the Penalty for Reckless Conduct under the NSW WHS Act?
A PCBU or other person must not recklessly engage in conduct that exposes an individual to a risk of death or serious injury or illness, without reasonable excuse.
The maximum penalty under section 31, WHS Act 2011 is:
- $3,000,000 for a PCBU who is a body corporate or government body
- $600,000 or 5 years imprisonment or both for an individual who is a PCBU or an officer of a PCBU
- $300,000 or 5 years imprisonment or both for an individual who is a worker or other person at the workplace
How to Avoid Prosecution for Reckless Conduct?
Being found guilty of reckless conduct is a potential fast route to insolvency for a PCBU or Officer or worker who is involved in the offence.
You can help guard against that happening to you. If you have an effective WHS Management System and ensure that its effectiveness is maintained then reckless conduct should not rise up in your workplace or in a workplace that is far away from the main office.
You could also review the risk control measures you have in place to be sure that they cover and could control the possibility of reckless conduct.
*Orbit Drilling Pty Ltd v Queen (2012) VSCA82