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First prosecution of an Officer under WHS laws

Sunday, July 06, 2014.

The first prosecution of an officer under the new harmonised WHS laws has commenced in the ACT, following an incident in which a truck driver died as a result of electric shock injuries sustained at work.

Kenoss Contractors Pty Ltd and one of its officers have been charged with breaches of their respective duties under the Work Health and Safety Act 2011 (ACT), following the 2012 death of the 48-year-old worker.

This fatality was one of the four fatalities (three of which occurred in the ACT construction industry) in a 7-month period which led to the Getting Home Safely Report being commissioned by the ACT Government, according to Norton Rose Fulbright.

In a legal update on the issue, lawyers Alena Titterton and Alice Winter-Irving also noted that the fatality occurred prior to the appointment of liquidators and receivers to various companies and assets in the Kenoss group.

Kenoss Contractors has been charged as the person conducting a business or undertaking (PCBU), with allegedly breaching the primary duty under section 19 of the Work Health and Safety Act 2011 to ensure the health and safety of its workers by failing to provide and maintain a work environment without risks to health and safety.

Kenoss Contractors has also been charged with a category 2 offence under section 32 of the WHS Act as a consequence of the alleged failure to comply with a health and safety duty, where that failure exposed the worker, Mr Booth to a risk of death, serious injury or illness.

This offence carries a maximum penalty of $1.5 million for a PCBU that is a corporation and $300,000 for a PCBU as an individual.

The individual officer has been charged with allegedly failing to exercise due diligence under section 27 of the WHS Act to ensure Kenoss Contractors complied with its work health and safety duties under the WHS Act.

The officer has also been charged with the same category 2 offence under section 32 of the WHS Act. Category 2 offences carry a potential maximum penalty of $300,000 for officers.

"An interesting aspect is that the individual officer was not a director of Kenoss Contractors, but a director of a related company," said the legal update.

"A central issue to be determined at trial will be whether as such, he is an officer (of the PCBU) as defined in section 9 of the Corporations Act 2001."

The officer pleaded not guilty to both charges under sections 27 and 32 of the WHS Act and the hearing of his case has been scheduled for late December 2014.

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