June 2006

An insight into WorkCover's Occupational Health & Safety functions

WorkCover NSW is charged with the responsibility of promoting workplace safety. It achieves that aim through education, workplace intervention and prosecution.

But how does WorkCover decide what steps to take to promote safety at each workplace? When will it decide to prosecute?

WorkCover’s recently issued Compliance Policy and Prosecution Guidelines provide an insight into WorkCover’s decision making process on whether to educate, fine or prosecute. The Guidelines are a must read for OH&S practitioners and individuals responsible for OH&S compliance. The following is a brief summary - the Guidelines can be accessed through the WorkCover website.

WorkCover's responsibilities

WorkCover responsibilities under its charter include:

  • promoting the development of healthy and safe workplaces;
  • ensuring compliance with the OH&S Act; and
  • investigating and prosecuting offences relating to workplace incidents.

Those functions are exercised by WorkCover’s staff, which includes investigators charged with statutory powers.

In exercising its functions WorkCover may take a number of approaches. The Compliance Guidelines say:

"the decision to take court action is often not the compliance action of first choice, rather it is made after a careful consideration of a range of factors, including whether advice or a penalty notice is the most effective way of achieving compliance."

WorkCover's education programs

WorkCover utilises various strategies to educate the work community about workplace safety, including:

  • development of codes of practice;
  • random and targeted workplace visits; and
  • strategic compliance programs.

Strategic compliance programs focus on a particular industry or topic. For example, WorkCover might decide to target the banking industry or workplace violence. Through strategic compliance programs particular safety problems can be identified and the community educated.

WorkCover's powers of intervention

WorkCover has the power to investigate an employer’s compliance with OHS legislation. It has power to enter premises as well as require the production of documents and plant/materials for the purposes of its investigation.

As a result of investigations WorkCover has the ability to:

  • issue improvement notices - a notice to an employer to improve its practices within a specified time;
  • issue prohibition notices - a notice prohibiting an employer from carrying out an activity because there is an immediate risk to health and safety;
  • issue penalty notices - which are on the spot fines; and
  • commence prosecutions.

What option WorkCover uses depends on the circumstances and the level of risk of injury.

WorkCover's decision making process for prosecutions

The aim of prosecution is to punish the offender and deter future offences. Nevertheless, prosecution remains a discretionary action.

The dominant factor for WorkCover in deciding to prosecute is the "public interest".

The WorkCover Guidelines usefully identify what it considers the "public interest". Whether or not the public interest requires a prosecution involves consideration of:

  • the seriousness or triviality of the offence;
  • mitigating or aggravating circumstances;
  • culpability of offender;
  • the prevalence of the offence;
  • the need for deterrence;
  • whether the offence is of public concern;
  • community expectations; and
  • the employer’s history of convictions.

After carefully balancing these considerations WorkCover decides whether to prosecute. In making that decision WorkCover gives priority to prosecuting offences in target industries, prosecuting workplace fatalities and serious injuries and where previous intervention at a workplace has failed.

Choosing the defendants for a prosecution

It is common today for accidents to occur where more than one party can be held responsible. This could include employers, contractors and other individuals or entities at the workplace.

In deciding which organisation or entity to prosecute, WorkCover focusses on who is primarily responsible for the offence and the respective culpability of different parties.

Prosecutions can be against individuals. The Guidelines say it is WorkCover’s policy to actively pursue both corporations and those concerned in management for breaches.

Death at workplaces

It is almost certain in cases of fatality that WorkCover will prosecute. Such prosecutions are said to be in the public interest.

At a time when industrial manslaughter legislation is topical, the Guidelines confirm that WorkCover and the police can consider whether the circumstances of each case justify a charge of manslaughter under the NSW Crimes Act.

Conclusion

The seriousness of a breach, culpability of the offender and the lack of regard the offender has to safety will influence the action taken by WorkCover. Workplace fatality and catastrophic injury will almost certainly result in WorkCover criminal prosecution. Whilst prosecution can never be ruled out for any incident, other compliance measures short of prosecution will be considered by WorkCover.

The Guidelines also contain a useful discussion on:

  • how charges are constructed;
  • charge/plea bargaining;
  • prosecutions against public authority defendants;
  • the use of victim impact statements; and

circumstances where WorkCover may appeal a decision of the Industrial Relations Commission or the Chief Industrial Magistrate.

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