The death of a volunteer firefighter on Western Australia’s south coast has raised concerns among local governments about the scope of new workplace health and safety laws.
Ever since the laws were updated in 2020 to include the crime of industrial manslaughter, there have been fears about how they would impact volunteer firefighter brigades.
WorkSafe WA’s acting commissioner has confirmed under the laws a council chief executive could be held personally liable and charged with industrial manslaughter for the death of a volunteer firefighter.
The idea has raised serious concerns on the state’s south coast where Harry Stead, 20, died after falling from a private vehicle while battling a fire on December 26 last year.
WorkSafe is investigating the incident, but the Goldfields Voluntary Regional Organisation of Councils (GVROC) is worried Esperance Shire chief executive Shane Burge could be liable.
“Even though the third-party actions taken in the incident were out of his control,” GVROC’s recent agenda states.
“Work, health and safety are undertaking a review of the incident putting the CEO at the front of this review.”
The agenda indicated GVROC would advocate for the reduction of any personal liability in a fire situation, taking into account people, vehicles, and equipment outside of the council’s control during any firefight.
Acting WorkSafe commissioner Sally North said any prosecution would need to meet a number of criteria.
“It is possible, but only if all elements of WorkSafe’s Prosecution Policy are met, including prosecution being in the public interest,” she said.
“Industrial Manslaughter charges require the prosecution to prove, beyond reasonable doubt, that the person knew their conduct was likely to cause the death of, or serious harm to, an individual, and they acted in disregard of that likelihood.”
Reluctance to dispatch volunteers
Under WA’s new Workplace Health and Safety Act, which came into effect in 2022, industrial manslaughter carries a maximum penalty of $5 million or 20 years’ jail for individuals.
The laws make “officers”, people making substantive decisions at any organisation, liable for this offence.
With limited numbers of professional firefighters in the south-east and other remote parts of the state, country councils often coordinate large groups of volunteers from multiple brigades.
They are also the responsible “officer” under workplace health and safety laws.
Peter Fitchat is chief executive of the Dundas Shire, which borders Esperance in the Eastern Goldfields.
Mr Fitchat said he signed bushfire control over to the Department of Fire and Emergency Services (DFES) at the earliest opportunity, partly due to liability concerns.
“I’m personally held responsible,” he said.
“So from our point of view, it’s a ‘no’ deal.”
Legal uncertainty
Lawyer Greg Smith said local government chief executives likely could have been prosecuted under former occupational health and safety laws — but the consequences were now much greater.
He said there was a lot of confusion about how the new law would be applied, with limited prosecution against chief executives and other senior officials.
But he believed prosecution would also be possible against a broad range of fireground decision-makers, including other shire staff or individuals within the Department of Fire and Emergency Services.
“Once you start to lay out all of the things that have to be considered in making that test it’s really difficult for people to form a view about what applies to them,” he said.
“We’re still trying to understand in practice what the principles might even look like.”
Mr Smith said increased public expectations around accountability could see the heads of more organisations pursued.
“I think there is an appetite among regulators to try to lift that level of accountability higher up into larger organisations,” he said.
“So I think it is a matter of time before we start to see executive officers, well removed from frontline work, being potentially or certainly investigated, and potentially prosecuted.”
But Mr Smith said he believed tougher penalties would not fundamentally alter the way people went about their business.
WorkSafe says speculation unhelpful
WorkSafe’s Sally North said it was unhelpful and premature to speculate on whether any party or person may be prosecuted over Mr Stead’s death.
“The investigation is complex and ongoing and therefore is yet to collect all relevant evidence associated with the incident,” Ms North said.
“Any decision to prosecute will be reliant on establishing that there is evidence of a breach of the law and, in contemplation of all of the circumstances, prosecution is in the public interest.”
The Shire of Esperance also declined to comment, citing the ongoing investigation.
Emergency Services Minister Stephen Dawson said the shire’s responsibility for the safety of their volunteers had not changed under the new legislation.
Source: ABC News
