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FIRST PROSECUTION CASE OF AN OFFICER UNDER

WHS LAWS Alena Titterton and Alice Winter-Irving of the occupational health, safety and security practice at the law firm, Norton Rose Fulbright.

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n Tuesday, 10 June 2014 in the Australian Capital Territory Industrial Magistrates Court, an early mention in the Kenoss Contractors case was heard. Some matters raised in the 10 June mention were canvassed in a further hearing on 17 June 2014. In this article, we canvass the developments in both hearings. This case includes a prosecution of both an organisation for allegedly failing to meet the primary health and safety duty and an officer for allegedly failing to exercise due diligence under the Work Health and Safety Act 2011 (ACT) which commenced on 1 January 2012. This case is ostensibly the first officer prosecution under the new harmonised WHS laws.

Background In March 2012, Kenoss Contractors Pty Ltd (Kenoss Contractors) was conducting work at a site in Turner in the Australian Capital Territory (ACT) and a 48-year-old worker/truck driver was electrocuted when he tipped his truck trailer to offload gravel at a dumping station at the site and the trailer touched a power line (Turner Incident). It is understood that WorkSafe ACT in investigating the Turner Incident identified that the power line was low and alleges that a properly conducted risk assessment would have eliminated the risk by putting the dumping station in a different location (such as across the road out of the reach of the power lines). In the ACT, Kenoss Contractors and one of its officers have been prosecuted for alleged breaches of their respective duties under the Work Health and Safety Act 2011 (ACT) (WHS Act) arising from the Turner Incident. This fatality was one of the four fatalities

16 SAFETY SOLUTIONS - AUGUST/SEPTEMBER 2014

(three of which had been in the ACT construction industry) in a 7-month period which led to the Getting Home Safely Report being commissioned by the ACT Government. The facts all arose prior to the appointment of liquidators and receivers to various companies and assets in the Kenoss group.

The charges under the WHS Act Charges against Kenoss Contractors Kenoss Contractors has been accused as the person conducting a business or undertaking (PCBU) with allegedly breaching the primary duty under section 19 of the WHS Act to ensure the health and safety of its workers while at work in the business or undertaking by failing to provide and maintain a work environment without risks to health and safety. Kenoss Contractors has been charged with a category 2 offence under section 32 of the WHS Act as the matter relates to an alleged failure to comply with a health and safety duty where that failure exposed 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.

Charges against the relevant officer The individual officer has been accused of 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 a category 2 offence under section 32 of the WHS Act as the matter relates to an al-

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Safety Solutions Aug/Sep 2014  

Launched in April 2003, this bi-monthly magazine provides vital information on safety products and services in the industrial, construction,...

Safety Solutions Aug/Sep 2014  

Launched in April 2003, this bi-monthly magazine provides vital information on safety products and services in the industrial, construction,...