OHS Prosecutions under the Work Health and Safety Act

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1 OHS Prosecutions under the Work Health and Safety Act A better deal for NSW employers? SYDNEY LAW SCHOOL Belinda Reeve, PhD Candidate

2 Relevant aspects of OHS law How will the model law change the use of OHS prosecutions in NSW? 1. The duties of care 2. Who can bring a prosecution 3. Which court hears prosecutions 4. The nature of offences 5. Sentencing options 2

3 The harmonisation process and the NSW situation Three key pieces of legislation 1. Occupational Health and Safety Act 2000 Current NSW OHS legislation 2. Occupational Health and Safety Amendment Act 2011 Amends OHS Act 2000 Passed 7 June 2011 Some national reforms already in force in NSW 3. Work Health and Safety Act 2011 Passed 7 June 2011 Coming into force 1 January

4 Contained in Part 2 of the Act The duty of care provisions under the WHS Act Division 2: Primary Duty of Care (s 19) Division 3: Places duties on those involved in: - Management or control of workplaces (s 20) - Management or control of fixtures, fittings or plant at workplaces (s 21) - Design, manufacture, importation, supply of plant, substances or structures (ss 22-25) - Installation, construction or commissioning plant or structures (s 26) Division 4: Places duties on: - Workers (s 27) - Officers (s28) - Other persons at the workplace (s29) 4

5 The employer duty provision under the OHS Act 2000 The old version 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer 28 Defence Defendant must prove that: (a) it was not reasonably practicable to comply with the Act (b) the commission of the offence was due to causes over which the defendant had no control and was impracticable to guard against The new version 8 Duties of employers (1) Employees An employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all the employees of the employer Section 28 defences removed No reverse onus of proof Prosecution bears onus of proving all elements of the offence, including reasonably practicable 5

6 The primary duty of care under the WHS Act 2011 Section 19: The primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. See also section 17: duty to ensure health and safety requires elimination or minimisation of risks so far as is reasonably practicable. 6

7 The primary duty of care under the WHS Act 2011 Section 19(3) PCBU must ensure (so far as is reasonably practicable): a safe work environment safe systems of work safe use, handling, and storage of plant, structures and substances, and adequate facilities for the welfare at work of workers in carrying out work for the PCBU information, training, instruction or supervision necessary to perform work safely the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business/undertaking 7

8 The primary duty of care under the WHS Act Section 18: definition of reasonably practicable means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: the likelihood of the hazard or the risk concerned occurring, and the degree of harm that might result from the hazard or the risk, and what the person concerned knows, or ought reasonably to know, about: (i) The hazard/risk, and (ii) Ways of eliminating or minimising the risk, and cost associated with available ways of eliminating/minimising the risk, including whether the cost is grossly disproportionate to the risk. NB: Reasonably practicable not defined in the OHS Act

9 The primary duty of care under the WHS Act 2011 Section 5: Meaning of person conducting a business or undertaking (1) For the purposes of this Act, a person conducts a business or undertaking: (a) whether the person conducts the business or undertaking alone or with others, and (b) whether or not the business or undertaking is conducted for profit or gain. (2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. Exceptions to definition: Workers or officers of the business or undertaking (s 5(4)) Elected members of a local authority (s 5(5)) A volunteer association: a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. (s 5(7) & (8)). 9

10 To whom is the duty owed? OHS Act 2000 Duty is owed to employees Definition in section 4: an individual who works under a contract of employment or apprenticeship WHS Act Owed to workers carrying out work in any capacity for a PCBU (section 7) Definition includes Employees contractors or subcontractors employee of a contractor or subcontractor employees of a labour hire company assigned to work in the PCBU Outworkers Apprentices/trainees Students gaining work experience Volunteers 10

11 Personal liability provisions OHS Act (pre amendments) Section 26: If corporation breaches Act, each director of the corporation and each person concerned in the management of the corporation is taken to have contravened the same provision Defences: (a) He/she was not in a position to influence the conduct of the corporation (b) He/she used all due diligence to prevent the contravention by the corporation. WHS Act and OHS Act amended Section 27 (WHS Act): an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with their duty or obligations Definition of officer (section 9, Corporations Act 2001) includes: Director or secretary of the corporation Person who makes/participates in decisions affecting the whole or substantial part of the business of the corporation Person in accordance with whose instructions/wishes the directors of the corporation are accustomed to act 11

12 Personal liability provisions Section 27 WHS Act continued due diligence includes taking reasonable steps to: - Acquire and keep up-to-date knowledge of safety matters - Gain an understanding of the nature of the business/undertaking and the hazards/risks associated with business operation - Ensure PCBU has available and uses appropriate resources and processes to eliminate/minimise risks - Ensure PCBU has appropriate processes for receiving/considering information on incidents, hazards and risk and responding in timely way to that information - Ensure PCBU has processes for complying with duties placed on the PCBU - Verify provision and use of resources and processes referred to above NB: OHS Act: no statutory definition of due diligence provided 12

13 OHS Act 2000 WHS Act 2011 Employee duty provisions Section 20: Duties of employees (1) An employee must take reasonable care for the health and safety of people who are at the employee s place of work and who may be affected by the employee s acts or omissions at work. (2) An employee must co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulation. Section: 28 Duties of workers While at work, a worker must: (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers. 13

14 OHS Act 2000 WHS Act 2011 Who can bring a prosecution? Section 107: Written consent of Minister required Inspectors Secretary of an industrial organisation if union has employee involved in the matter concerned Section 230 Regulator Inspector with written authorisation of the regulation Secretary of an industrial organisation with employee concerned in the matter - Only in relation to category 1 and 2 offences if the regulator has declined to follow the advice of the Director of Public Prosecutions to bring the proceedings 14

15 The nature of offences OHS Act (pre amendments) Absolute liability Onus on prosecution to prove elements of offence to criminal standard Defendant must prove defence of reasonable practicability to civil standard WHS Act Absolute liability subject to qualifiers in duty provisions Prosecutor must prove all elements of offence Must identify risk and also reasonably practicable steps the defendant failed to take 15

16 Offences under the WHS Act The hierarchy of offences Section Cat. Elements of the offence 31 1 a. A person who has a health and safety duty, b. without reasonable excuse, engages in conduct exposing person to whom that duty is owed to a risk of death or serious injury or illness, and c. the person is reckless as to the risk to an individual of death or serious injury or illness 32 2 a. A person has a health and safety duty b. the person fails to comply with that duty and c. the failure exposes an individual to a risk of death or serious injury or illness 33 3 a. The person has a health and safety duty, and b. The person fails to comply with that duty 16

17 Maximum penalties under the WHS Act Sections Offence category PCBU - body corporate PCBU individual or officer of PCBU 1 $3,000,000 $600,000 and/or 5 years imprisonment Other individuals $300,000 and/or 5 years imprisonment 2 $1,500,000 $300,000 $150,000 3 $500,000 $100,000 $50,000 Exclusion s Unincorporated associations/volunte ers associations (s5(7)) Volunteers (s34(1)) but not from breaches of ss 28 and 29 (duty of workers, others at place of work) 17

18 Non-monetary penalties OHS Act Sections : Court may order: Publicity/notification Take steps to remedy matter forming the offence (restoration) OHS projects Pay WorkCover s investigation costs WHS Act Sections : Court may order: Adverse publicity Restoration Work Health and Safety projects Work Health and Safety Undertaking Injunctions Training See also sections : WorkCover may accept an enforceable undertaking in lieu of prosecution 18

19 Jurisdiction for OHS offences The NSW system Jurisdiction transferred from NSW Court of Appeal to Industrial Court in 1987 No appeal available to the general courts Limited ability to review decisions of the Industrial Court Industrial Court had significant power to determine nature of OHS law in NSW Operated outside checks and balances on court power (i.e. appeal to higher courts) Result = jurisprudence not in alignment with criminal law, biased against employers 19

20 Jurisdiction for OHS offences (criminal) Section 229B Offence category Responsible court 1 Local Court District Court 2 Local Court District Court 3 Local Court* Industrial Court Nature of proceedings Summary proceedings except for category one offences committed by an individual: to be taken on indictment Summary Summary * NB: Local Court can order maximum $50,000 fine in respect of breaches of WHS Act 20

21 Is the Act a better deal for NSW employers? Putting the WHS Act into operation Pros Reasonably practicable included in primary duty Removal of defence provisions and reverse onus Greater detail on how to comply with duties Specifies behaviour constituting serious breach Removal of union right to claim moiety Cons Unions retain right to prosecute Confusing system for hearing OHS prosecutions 21

22 National Compliance and Enforcement Policy Putting the WHS Act into operation Heads of Workplace Safety Authorities undertaking the WHS Regulators Harmonisation project Aims to ensure nationally consistent procedures for investigations, prosecutions and enforceable undertakings State level enforcement approach harmonised under National Compliance and Enforcement Policy Developed by SafeWork Australia and endorsed by WRMC on 10 August

23 National Compliance and Enforcement Policy Putting the WHS Act into operation Sanctions Court sanctions Regulator sanctions Directing compliance Improvement notices Prohibition notices Encouraging and assisting compliance Information, guidance, advice 23

24 Interpretation by the mainstream courts Putting the WHS Act into operation Will the courts be comfortable awarding new high penalties? How will the WHS Act s provisions be interpreted by the Courts? Comparison of NSW and Victorian jurisprudence re reckless employee cases: - Suggests that NSW Industrial Court and Victorian Criminal Court s approach is similar in some respects - Need to be cautious about assuming that the mainstream courts will produce a more employer-friendly approach See Belinda Reeve and Ron McCallum, The Scope of Employers Responsibilities under Australian Occupational Health and Safety Legislation (2011) Australian Journal of Labour Law, 24(3) (forthcoming) 24

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