Jail sentence for OHS offence   (VIC)

A Victorian man, Mr B, was recently sentenced to a four month jail term for recklessly shooting a nail gun at a colleague.  The colleague, an apprentice, lost the sight in one eye as a result of the incident.

The Magistrate imposed on the defendant a sentence of four months imprisonment, but did not require him to serve that time in prison. The defendant instead must undertake intensive correction in the community, undertaking community work for a total of 12 hours per week for the period of four months. A breach of the requirements of that order could see the defendant complete his sentence in prison.

Mr B, a roof tiler, pleaded guilty to reckless endangerment under Section 32 of the Occupational Health and Safety Act 2004 (Vic).

WorkSafe told the court that on 27 May 2009, Mr B and other employees of a roofing company were working at a new housing estate in Melton.

Barrister Peter Matthews said the tool was used as a weapon and that the offending was not at the lower end of the spectrum. In a record of interview Mr. B admitted firing several nails at the apprentice who was up to 20 metres away.  

WorkSafe’s General Manager for Operations, Lisa Sturzenegger, said improper use of nail guns had no place in the workplace.  

“Nail-guns are high-risk / high-consequence equipment which have caused 1190 injuries which resulted in workers compensation claims over the past 10 years.  

“They are powerful and can help get work done more quickly, but the consequences if they are not used correctly can be extremely serious.  

“Employers and supervisors have clear responsibilities to ensure equipment is well-maintained and that the people using them are trained and have a very clear idea of what can happen through misuse.  

“Workers have very clear responsibilities to work in a safe way, not put others at risk while co-workers, particularly more experienced people, need to speak-up if inappropriate behaviour is going on.

The nail guns at the site were seized by WorkSafe inspectors and tested by the manufacturer and were found to be operating correctly.

Although there have been a relatively small number of prosecutions of employees, the case involving the nail-gun is the closest a person has come in Victoria to having to serve a term of imprisonment for breaching the OHS Act.

The charge:  Section 32 of the Occupational Health and Safety Act 2004

Duty not to recklessly endanger persons at workplaces A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence and liable to—

(a) in the case of a natural person, a term of imprisonment not exceeding 5 years, or a fine not exceeding $219,852, or both.