May 2005

Proposed laws penalising directors for workplace deaths - one step closer in NSW

On 5 May 2005, the NSW Minister for Commerce, Hon John Della Bosca, said:

"Make no mistake – if you are indifferent to occupational health and safety, if you have no concern for the consequences of that behaviour and a workplace death results – you will face the consequences."

And with those remarks the Minister released the Occupational Health and Safety Amendment (Workplace Deaths) Bill 2005 for consultation. If the Bill becomes the law in NSW it will amend the OH&S Act and introduce a workplace death offence.

"The Bill is another illustration of the need to comply with oh&s obligations".

The Government has released the latest Bill after consultation and submissions following release of the Workplace Fatalities Consultation Bill last October.

Under the latest Bill all individuals and companies with existing obligations under Part 2 of the NSW Occupational Health & Safety Act will be exposed to conviction of the workplace death offence when a fatality is caused by their reckless conduct. Individuals found guilty of the proposed new offence will face massive fines and possible imprisonment.

We comment further on what this Bill will mean for NSW if it is passed and becomes the law.

The Bill

Employers, directors, senior management, employees, self-employed persons, controllers of work premises, plant or substances, designers, manufacturers and suppliers of plant and substance for work all owe duties under Part 2 of the Occupational Health and Safety Act 2000.

The Bill proposes a new workplace death offence for all persons who have a duty under Part 2 of the Occupational Health and Safety Act 2000 when their conduct causes the death of another person at a place of work, and they are "reckless as to the danger of death or serious injury" that arises from their conduct.

The Bill says a person’s conduct causes death if it substantially contributes to the death.

Under the Bill if a corporation owes a duty under Part 2 of the OH&S Act, every director or person concerned in the management of the corporation is also taken to owe that duty for the purposes of the workplace death offence. This creates a primary duty on directors and managers of corporations.

However, the proposed Bill goes further than managers and directors of corporations.

Under the existing OH&S Act all employees owe duties to take reasonable care for the safety of people at work and to co-operate with their employer’s safety requirements. Under the proposed Bill all employees will be potentially liable if their reckless conduct causes a workplace death.

A breach of the proposed workplace death offence could result in a maximum fine of $1,650,000 for a corporation and fines of up to $165,000 and/or imprisonment for up to 5 years for an individual. The Bill makes no distinction between first time and repeat offenders in setting maximum penalties.

It is a defence to the proposed workplace death offence if the defendant can prove there was a "reasonable excuse" for the conduct.

The existing Occupational Health and Safety defences will also be available to a defendant charged with the proposed workplace death offence. That is, it will be a defence if a defendant can prove it was not reasonably practicable to comply with the provisions or the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision.

Under the Bill, a person convicted of the workplace death offence will have the right to appeal to the Full Bench of the Industrial Relations Commission. In addition there will be a right to appeal to the NSW Court of Criminal Appeal if a sentence of imprisonment is imposed.

Where a person is acquitted of the workplace death offence the prosecutor does not have a right to appeal. This is to be contrasted with the current appeal provisions which permit WorkCover to appeal against OH&S acquittals.

What does it all mean?

There will be a number of uncertainties about the operation of the workplace death offence if it becomes law in NSW. For instance, precisely how does the proposed offence operate in the context of the existing OH&S duties in Part 2 of the Act? Is it necessary for there to be a breach of the OH&S duties as an element of proving the workplace death offence?

However, one thing is clear. The Bill will expose employees and employers to prosecution under the workplace death offence if they recklessly cause death.

In terms of Occupational Health & Safety law, that would introduce a far higher level of potential risk for employees than exists under the current law.

Despite that risk an essential factor to bear in mind is that only conduct which is "reckless" can result in conviction. That requirement will exclude most conduct by employees and employers from prosecution under the proposed offence, even if death occurs. Most conduct will not fall within the meaning of "reckless".

Because of that, if the Bill becomes the law it is unlikely to lead to a rush of prosecutions or convictions.

The requirement that conduct be "reckless" supports the following comment made by the Minister when he launched the Bill earlier this month.

"I can reassure the vast majority of employers, who I know are hard-working and responsible, that they have nothing to fear from this Bill. It is only the minority – the rogues – who should be worried."

Conclusion

Workplace fatalities are tragic and should be prevented at all costs. A punitive approach has been favoured by the NSW Parliament for some time to combat community concerns and reduce the risk of workplace fatalities. The Bill is another illustration of the need to comply with OH&S obligations. If it becomes the law it will introduce a higher level of risk for employers, directors, managers and employees. However, ultimately it is only reckless conduct which would result in a conviction of the workplace death offence, and expose employers and individuals to the heavy penalties proposed in the Bill.