Workplace deaths are still a major concern within our community as illustrated by the vehement protests following the death of a 16-year-old apprentice from a construction site in October 2003.
Partly in response to community sentiment, the NSW Government has proposed a new draft Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill to create a quasicriminal offence for employers if an employee dies at work as a result of the employer's breach of the Occupational Health and Safety Act 2000 (NSW).
The key premise behind the Bill, however, is a focus on compliance with occupational health and safety rules, and to impose a heavy obligation on all employers in discharging their OH&S duties.
The draft Bill follows moves by the WorkCover Authority of New South Wales in January 2004 seeking advice from a panel of specialist lawyers (headed by Professor Ron McCallum) as to whether NSW should make amendments to the Act, to create a separate offence for workplace deaths.
While the panel, in its report to WorkCover in June 2004, did not advocate the introduction of a separate criminal offence for industrial manslaughter, it did recommend that:
- It would be appropriate for special legislative provisions to apply to cases concerning offences under the Act which involve deaths at the workplace;
- Offenders should be liable to a significantly higher penalty scheme, including the possibility of jail for first time offenders. At present, the imposition of a term of imprisonment is a penalty available to the Industrial Relations Commission only for a second or subsequent offence;
- Offenders should also be required in certain cases to make a reparation payment to members of the immediate family of the deceased worker, to be determined as a percentage of any monetary penalty determined by the Commission; and
- Guidelines should be provided to judges when considering appropriate penalties, particularly where there are shown to be aggravating factors which led to the death of the worker.
The panel's view was that the strict liability approach is fundamental to the maintenance of an effective occupational health and safety regime in New South Wales, and that any amendment to the Act should not require an element of fault or intent for the offence of industrial manslaughter to be made out. The extent to which an employer could be said to be culpable for a workplace death would only be relevant during the sentencing phase.
Following the release of the report, the NSW Parliament released the Bill as a consultation draft. The government’s proposal is to create an offence if there has been a contravention of the Act, causing the death of an employee while at work, which will expose the employer to penalties of up to:
- for individuals, two years' imprisonment and/or $110,000 fine for a first offence, and five years' imprisonment and/or $165,000 fine for subsequent offences;
- for corporations, $1.1 million for a first offence, and $1.65 million for subsequent offences.
The Bill also endorses the panel's recommendation that an offence remain a strict liability offence, and any element of negligence or recklessness will only be taken into account when determining the appropriate penalty. Other factors which would also be taken into account during the penalty phase include:
- whether the risk to health or safety caused by the commission of the offence was known or obvious to the employer, or was a risk that was reasonably foreseeable;
- whether there were measures reasonably available to the employer to prevent or mitigate the risk to health or safety caused by the commission of the offence; and
- whether the employer gained a financial advantage by failing to implement safe systems of work that resulted in the commission of the offence.
If the NSW Government adopts the panel's recommendations and implements the Bill as it is currently drafted, the consequences for directors and managers of corporate employers could be very serious.
If an employer is found guilty of the offence of industrial manslaughter, then the proposed amendments in conjunction with other sections of the Act would mean that any director or manager of an employer will automatically be found to be guilty of industrial manslaughter, and be subject to the higher penalty scheme as well as the possibility of imprisonment, unless the director or manager can demonstrate that they were not in a position to influence the conduct of the employer in relation to its contravention, or they used all due diligence to prevent the contravention by the employer.
Public comment on the exposure bill closed on 12 November 2004 and the Bill is currently being considered by Parliament.
In the meantime, the Federal Government has recently announced that it intends to introduce a bill to exempt Commonwealth employers and employees from State imposed industrial manslaughter laws, such as those made law in the A.C.T. and those proposed by the New South Wales Parliament.
While the incidence of workplace fatalities are falling according to recent NSW WorkCover statistics, workplace fatalities remain a point of contention within the community. Employers need to make sure they have the right OH&S policies and procedures in place, and that they adhere to them. This need will be highlighted if the NSW Government adopts the amendments proposed in the Bill.Edward Haggerty is a partner and Jennifer Flinn is a senior associate at industrial relations and employment law firm Toomey Pegg Drevikovsky.