9 September 2009
New OHS laws based on a national Model Act will bring "a race to the bottom"
or much-needed clarity for employers, experts will tell The Safety Conference
in Sydney.
Either way, all agree the changes are going to have a big impact on employers
and unions in New South Wales.
On October 27, a line-up of eight experts, including lawyers, Professor Ron
McCallum, the chair of Safe Work Australia, WorkCover NSW's general manager
and Comcare's general manager of prevention and rehabilitation will discuss the
biggest reform of OHS law in 30 years.
But even before a panel of heavy hitters representing unions, employers,
academics and the regulator speak later that afternoon, the battle lines will
have been well and truly drawn.
Three issues are set to dominate discussion: the burden of proof, the personal
liability of company officers, and the impact on prosecutions.
Neil Foster, senior law lecturer from the University of Newcastle, believes
personal liability is at the heart of the changes.
"The harmonisation process seems to have been driven by directors' fears
of personal liability and the hope that there would be some watering down
of the laws," he says.
"In my view, the Model Act inappropriately waters down the personal
responsibility of company officers, although I do support some of the proposed
changes in this area, including the acknowledgement that the officer has
obligations to exercise due diligence to protect the workers.
"But with the change to the current onus of proof provisions, it is quite
possible that guilty people will now escape justice."
Michael Tooma of Deacons law firm, who will moderate the panel discussion,
says that while current state laws differ in their approach to the approach to
personal liability of officers, all will be reshaped by the proposed Model Act.
"Despite the range of liabilities, all have one thing in common: the officer will
be personally liable only if their company commits an offence," Tooma says.
"The new regime does not require this. Under the approved recommendations
for the new OHS laws, officers will be liable if they fail to exercise due diligence.
"That is, the duty has been recast as a positive obligation on officers to
proactively ensure compliance with OHS laws rather than an attributed
liability in the event of a breach by the company.
"This is a landmark shift in approach which will have a significant impact on
OHS enforcement and compliance."
The definition of "due diligence" may also be contentious.
"The Workplace Relations Ministers' Council (WRMC) did not approve the
recommendation for a definition of due diligence," Tooma says.
"The Committee had recommended that due diligence be defined in line
with existing case law on its meaning, drawn largely from NSW where the
term has been in use for almost 30 years.
"Instead, WRMC preferred to rely on the Courts to interpret due diligence.
Practically, that means that the true harmonisation of the scope of the
personal liability of officers may have some way to go as each State Court
and Territory Court attempts to interpret due diligence in the context of
the case before it until a case is brought to the High Court so that an
authoritative determination of that term is made which is binding on all
state and territory Courts."
Michael Selinger of Holding Redlich Lawyers points out that company officers
found guilty will face increased penalties, rising from the from the current
maximum in NSW of two years in prison or fines of $55,000 to fines of up to
$600,000 for an individual and five years in prison.
New South Wales employers, however, may enjoy some relief as the burden
of proof shifts to prosecutors.
"The new Model Act will have a more significant impact on New South Wales
employers than those in any other states because the Model Act is largely
based on the Victorian and Queensland Acts," says Selinger.
"For New South Wales, the onus of proof will move away from the employer
as a result of the inclusion of the qualifier of 'reasonably practicable' in the
general duty to ensure safety under the Act. When it comes to proving liability,
the prosecutor will now need to show the employer has not taken all reasonable
steps to prevent injury.
"In 95 per cent of cases, shifting the burden of proof to the prosecutor won’t
affect the outcome.
"This is because when an injury occurs, employers examine the workplace to
see what actions need to be taken to prevent a recurrence – by doing that,
they show that there were reasonable steps that could have been taken,
which makes it easier for the prosecution to prove liability.
"To some extent, there’s always been this tension between trying to improve
the safety system and protecting your legal position."
"The legislation in NSW has historically been enforced more vigorously than in
other jurisdictions but most OH&S regulators only initiate a prosecution if it is
in the public interest and they have a good prospect of success.
"Under the new Act, there’s likely to be more of an emphasis on education and
cooperation between the regulator and business.
"We won’t really know the answer to whether there’s likely to be fewer
prosecutions until the new Act is implemented – at the end of the day, how
it is enforced will be the key factor.
"The regulator will still have plenty of enforcement tools and there is likely
to be a uniform enforcement policy applied across the country."
On the other hand, Neil Foster believes the onus of proof belongs with employers.
"The Model Act has been legitimately described as 'a race to the bottom'.
"The onus of proof should be placed on employers because they have the
greatest control over safety: how hard people work; safety procedures; how
money is spent; and safety policies.
"There is still a lot of carelessness in workplaces and WorkCover sensibly
doesn't launch prosecutions unless there's a good chance the employer is
guilty and hasn't taken reasonable precautions. I think the NSW safety
system has been working well."
Scarlet Reid, special counsel for Henry Davis York says the impact of
reversing the onus of proof is uncertain.
"From a practical perspective, this could make convictions more difficult
to obtain in New South Wales," she says.
"In the absence of any changes that stipulate which courts hear prosecutions
at first instance, it remains to be seen if this is in fact the case. It is
questionable as to whether real uniformity can be achieved without
examining this important issue."
Reid says employers were likely to benefit from other changes under the
proposed Model Act.
"Defendants in NSW and Queensland should benefit from the proposed
expanded appeal rights," she says.
"Defendants in NSW may also find comfort in the proposal to abolish the
prosecutor's right to appeal against an acquittal."
If employers are winners under the changes, unions, who will lose the
right to launch prosecutions, protest vigorously against the proposed
Model Act, claiming it would be detrimental to safety.
Neil Foster agrees. "The changes to be brought in under the harmonisation
process send a message from government to employers: safety's been too
tough and that we're not so worried about it anymore. It's very sad."
The national harmonisation of OHS legislation will be debated at The Safety
Conference on October 27. Sponsored by WorkCover NSW and Getex Pty
Ltd and presented by the Safety Institute of Australia's NSW Division,
The Safety Conference will run during Safe Work Australia Week from
October 27 to 29 at the Sydney Showground.
For more information, visit www.thesafetyshow.com,
email safetyvisitor@aec.net.au or phone Australian Exhibitions &
Conferences on 03 9654 7773 03 9654 7773.
Ref: Manafacturers Monthly
No comments:
Post a Comment