First prison sentence handed down for breach of WHS duty offence

Our friends at Sparke Helmore Lawyers report the first time an individual has been sentenced imprisonment (6 months) following breaches of WHS duty provisions relating to her involvement in a 2017 workplace fatality. Despite being available to courts for a number of decades, we are not aware of any person in Australia receiving a non-suspended custodial sentence for a breach of a WHS duty provision before this decision.

Although the sentence is the subject of an appeal, the decision by a Victorian Magistrate to impose a custodial sentence is consistent with the following trends we have been increasingly observing:

• penalties handed down by Courts in WHS matters are becoming more severe, and
• a greater focus on individual liability and prosecutions following workplace incidents.

This is a significant development for employers and employees. Individuals in Queensland and Victoria have previously received suspended custodial sentences for breaching WHS duty provisions, and individuals have received custodial sentences after being charged with manslaughter following serious workplace incidents. However, we are not aware of any other person having previously received a non-suspended custodial sentence for a breach of a WHS duty provision in any Australian jurisdiction. The custodial sentence imposed on Ms Jackson adds further weight to the argument that the penalties being imposed on businesses and individuals who fail to comply with their WHS duties are significantly increasing.

This trend is supported by recent data published by Safe Work Australia showing that in 2016-17, the total value of all court ordered WHS fines increased by 8%, despite a 24% decrease in the number of WHS prosecutions commenced compared to recent years. We expect this trend will continue in 2019.

The custodial sentence also comes at a time of growing pressure on Governments around Australia to legislate harsher penalties for individuals and businesses who breach their WHS duties. This pressure has resulted in legislative reform in Victoria to increase maximum penalties for WHS breaches.