EMPLOYER GROUPS have expressed concern over proposed workplace fatality laws in NSW, which would see negligent employers involved in workplace deaths punished by jail terms and heftier fines for individuals and corporations
EMPLOYER GROUPS have expressed concern over proposed workplace fatality laws in NSW, which could see negligent individuals involved in workplace deaths punished by jail terms and heftier fines for directors, managers and corporations.
The proposed changes would also allow WorkCover as well as unions to initiate prosecutions against companies which have caused the death of an employee or other relevant person.
Individuals could face up to two years jail for first-time offenders and five years for repeat offenders under proposed amendments to the Occupational Health and Safety Act 2000 (NSW), while penalties of up to $165,000 would apply for individuals (including directors and managers) and $1.65 million for corporations with a record of previous safety offences.
If further time wasn’t allowed for consultation on the proposed changes, the State Government risked fundamentally flawed legislation, according to Australian Industry Group chief executive Heather Ridout.
As it stands, she said the legislation will deliver inequitable treatment to employers where a workplace death has occurred, and was unfair to the point of putting employers offside in the important push for safer workplaces.
“In one example under the proposed changes, if a robber enters a workplace and shoots and kills a security guard, both the robber and the guard’s employer face potential jail sentences,” she said. “However, the robber would have more legal rights and be subject to a fairer process than the employer under the new Bill.”
The robber would be granted the full protection of criminal law process, assumed innocent until proven guilty, face an independent prosecutor and would have unfettered access to appeal rights through to the High Court, Ridout said.
“On the other hand, the employer facing prosecution for allegedly failing to ensure the safety of their employee would not have the same protections,” she said.
“The employer’s appeal rights would be limited and in some circumstances individual managers or directors may have to start from a position of assumed guilt.”
The Bill would also allow unions, perhaps motivated by unrelated grievances, to initiate prosecutions against employers for serious criminal offences with the potential for jail terms, said Ridout.
The NSW Labor Council said that the ultimate test for the Bill will be whether it reduces fatalities, and encouraged the Government to properly resource inspectorates to enforce the law.
“Unions see this initiative as a first step in addressing the ongoing problem of high accident rates be-setting some industries,” said Labor Council Secretary John Robertson.
Additionally, the Draft Bill proposes the introduction of aggravating factors, which a court would be required to take into account when sentencing under the OHS Act, according to Andrew Ball, a partner with Corrs Chambers Westgarth.
These factors include: the risk to safety was reasonably foreseeable; there were feasible measures reasonably available to the offender to prevent or mitigate the risk; the risk from the breach could have caused serious injury or death; death or serious injury was caused by reckless or negligent conduct; and the employer gained a financial advantage by not implementing safe systems of work.
The Draft Bill also provides for limited rights of appeal for individuals from the NSW Industrial Relations Commission in Court Session to the NSW Court of Criminal Appeal, Ball said.
