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1. The Criminalisation of our OHS Laws 8 October 2010
SISA AGM
3. OHS & W Penalties 1 Jan 2008 Penalty Level Individuals Bodies Corporate
Division 1 fine $200 000 $600 000
Division 2 fine $100 000 $300 000
Division 3 fine $ 40 000 $120 000
Division 4 fine $ 30 000 $90 000
Division 5 fine $ 20 000 $60 000
Division 6 fine $ 10 000 $30 000
Division 7 fine $ 5 000 $15 000
Second Offence: double plus $40,000.00
“Endanger Persons” 5 years Gaol or double Division 1
4. New offences under the Act Occupational, Health, Safety and Welfare (Penalties) Amendment Act 2007
Came into effect/applies to offences after 1 January 2008
Tripled offences for companies
New Offences e.g. introduction of S59; S59A – C
Tripling of penalties for corporation and specific offences
for individuals
Anticipation of Harmonised laws at end of 2011
Yet to see impact 2 years to prosecute offence but expect to see impact in next couple of months.
Safework have gone through actual amendments (I’m going to look at practical and legal effect of amendments – where the rubber meets the road!)
A bit of doom and gloom for Employers and officers of Corporations involved in management of Corporations
Call it the “Gaol and Sale” Act
Gaol – where you could end up
Sale – is what you may have to do to your house to pay the fines
And hopefully provide some guidance on strategies to consider to reduce potential liability
Yet to see impact 2 years to prosecute offence but expect to see impact in next couple of months.
Safework have gone through actual amendments (I’m going to look at practical and legal effect of amendments – where the rubber meets the road!)
A bit of doom and gloom for Employers and officers of Corporations involved in management of Corporations
Call it the “Gaol and Sale” Act
Gaol – where you could end up
Sale – is what you may have to do to your house to pay the fines
And hopefully provide some guidance on strategies to consider to reduce potential liability
5. Past Prosecutions
6. New offence – Endangerment – S59 New offence of endangerment replaces existing aggravated offence
No case law for guidance
Look at wording of section
59—Offence to endanger persons in workplaces
A person is guilty of an offence if—
(a) the person, without lawful excuse, acts in a manner that creates a substantial risk of death or serious harm to another who is in a workplace; and
(b) the person—
(i) knew that his or her act or acts would create that risk; or
(ii) was recklessly indifferent about whether his or her act or acts would create that risk.
7. New Offence – Endangerment – S59 cont. A “risk” of death or serious harm
Mental elements
Court must find actual knowledge not imported or constructive
Or a reckless indifference; if the accused foresaw and realised his act would probably create a risk of actual death and serious harm and acted regardless
Defence - lawful excuse
Penalties for breach
$1.2 million for companies
$400,000 or 5 years gaol for individuals
8. New Offence – Endangerment – S59 Examples of conduct -Orbit Drilling Pty Ltd
Company charged under s32 of Vic OHS Act as was Director under s144 (“recklessly endangering a worker”)
21 year old employee was crushed to death when the overloaded Mack truck he was driving lost control and overturned on a steep, off road slope
Facts:
No induction or safety training
Employee held truck licence for little more than 2 weeks
Only 11 hours of driving lessons
Directed to drive down the 10 degree slope without adequate gear selection training
Truck found to have faulty primary and emergency brakes, with secondary brakes disconnected
Truck not serviced for 6 months
Company convicted and fined $750,000, Director $120,000
Supervisor also charged under s32 and is matter is currently being heard. Victoria case examples Orbit and now further matter
Supervisor looking at 5 years in jailVictoria case examples Orbit and now further matter
Supervisor looking at 5 years in jail
9. Liability of officers of body corporate - S59C An officer includes (s4) - member of governing body
- executive officer
If company is found guilty of an offence under the Act, and the contravention is attributable to an officer, then the officer is also guilty of an offence and liable to the same penalty as the company
Company officers can not hide behind the corporate veil
Deemed guilty of offence
“Attributable”
very open for interpretation
Less than a direct consequence
Doesn’t have to be solely attributable
Officers conduct could be one factor
Concerning given most ohs incidents are a result of a combination of factures or failures
Open up potential avenues of prosecutions against individual officers
Greater potential for fines
No gaol for an offence under this provision
10. National Harmonised Legislation Penalties Duty of Care Offence Corp. Officer Worker
Cat 1 -recklessness $3M $600k/ 5yrs jail $300k/5yrs
Cat 2 - serious risk $1.5M $300k $150K
Cat 3 - less serious $500K $100K $50K
Other Offences
Cat 4 – 7 to range from $5,000 - $250,000
11. Powers of SafeWork Inspectors Powers of entry and inspection – OHS&W Act (1986)(SA) –
Section 38.
Inspector has power to:
Enter a workplace at any time;
Inspect the workplace or anything in the workplace;
Require a person to produce books, documents or records
Examine, copy or take extracts from books, documents or records;
Take photo’s, films, video or audio recordings;
Take measurements, make notes and records and carry out tests;
Require a person to answer any questions relating to health safety and welfare of persons at the workplace;
Require production of statement or record required under the act
Seize evidence *Audio recordings – issue – listening device act requires consent to record – practice of Safework to audio taped interviews
*requirement to answer questions – Powers greater than police – take away common right to silence
*Audio recordings – issue – listening device act requires consent to record – practice of Safework to audio taped interviews
*requirement to answer questions – Powers greater than police – take away common right to silence
12. Powers of Safework Inspectors Exceptions
Legal professional privilege
Information relevant to proceedings that have been commenced under the act.
Offences
Hinder or obstruct an inspector in exercise of power
Refuse without lawful excuse to comply with requirements
Penalty
Fines up to $20,000.00 for company and individual Legal Professional Privilege – Discuss later
What is lawful excuse? – Give examplesLegal Professional Privilege – Discuss later
What is lawful excuse? – Give examples
13. What is LPP and when can it be used? LPP coveys a right to the client in the client/lawyer relationship. It is a basis that protects certain classes of information from disclosure.
LPP will protect information from disclosure provided that it is for:
Confidential communications;
Between a client and their lawyers; and
It is made or brought into existence from the dominant purpose of either:
Use in existing or anticipated litigation: or
Legal advice
Information protected by LPP cannot be distributed generally, copied or discussed too widely, as this may result in LPP being lost or waived.
14. Practical considerations The law imposes significant obligations
Review your:
Occupational Health and Safety system
Incident response procedures
Incident reporting procedures
Use of legal professional privilege
Education of employees in dealings with workplace health and
safety officers
The penalties are severe – and likely to get higher in the current
review
Courts responding to community & political message
Get onto it now – don’t be the case which is used to send a
message to everyone else