Work Health and Safety

There is much that could be done to improve how the current work health and safety legislation functions. We would argue that long before any new laws are thrown into the mix – we should address the inadequacies in the current law, or rather, have this law enforced and applied as it was intended.

The following courses of action refer to Work Health and Safety Act 2011 (SA)

ENFORCEMENT

There has been an unmistakable decline in prosecutions from 2011-2012 (36)[1] to 2016-2017 (7)[2] – that depicts an 88% reduction in prosecutions. The questions then must be whether there is any real deterrence factor when common law rights for workers are also unable to impact prevention.

The penalty regime has also become redundant; with only 1 Category 3 (s 33) conviction and zero Category 1 (s 31) – and then weighing this with over 12,000 injuries lodged under the Return to Work Act in 2017 - this disparity is blatant.

If in a position to do so – SA-BEST will do the following:

  • Our laws are written to be enforced and our priority will be to make sure that when people are injured and the reason for that injury rests with negligent conduct, the employer or PCBU must be held to account.

ENFORCEABLE UNDERTAKINGS

An enforceable undertaking is a statutory instrument that is a part of the penalty regime, available to the regulator to use in place of a prosecution in certain circumstances. They have become a popular alternative across all jurisdiction including SA and may be a suitable sanction. 

However, we have serious concerns for their use in matters where someone dies or suffers catastrophic injuries. Our priority is to make sure the families and injured are able to make a fully informed choice when considering any transgression in criminal culpability.

If in a position to do so – SA-BEST will do the following:

  • Amend s 216 to prohibit enforceable undertakings in the event of a fatality or catastrophic injuries unless the following provisos are met -
    • Consent: The immediate family or injured party (where capable) has given expressed consent
    • Full Disclosure: That consent is provided after the consideration on all factual evidence
    • Independent Advice: The immediate family or injured party has been provided with independent legal advice in relation to that evidence

INSURANCE

It’s time to close that loophole the Government has failed to.

We agree with the Chief Justice of the NSW Supreme Court,[3] in that the current model legislation is unclear. South Australia’s legacy from the 2013 Ferro Con prosecution;[4] where the criminal penalty (fine) was indemnified by the employer’s insurance policy. The ability for a company to protect itself from criminal penalty hinders the court’s ability to do its job and prevents the laws from having a deterrent factor.

If in a position to do so – SA-BEST will do the following:

  • Amend s 272 of the Work Health and Safety Act 2012 (SA) to include a clarification to remove any doubt that a contract indemnifying or policy aimed at indemnifying any liabilities under the Act is void.

DISHONEST DIRECTORS

It is unacceptable to tolerate deliberate attempts to frustrate investigations or tamper with evidence or witnesses. It is not tolerated under Corporations law and it should not be tolerated where people’s lives are at risk.

If in a position to do so – SA-BEST will do the following:

  • Amend the Work Health and Safety Act 2011 (SA) and would-be Corporate Manslaughter legislation to empower the disqualification of a director convicted under those laws and those under s 31(1) from the future management of any corporation pursuant to the Corporation’s Act s 206B(1).
  • Examples of the kind of conduct that might amount to ‘dishonest’ conduct
    • Deliberate concealment of evidence
    • Falsifying documents
    • Deliberate attempts to avoid scrutiny in the lead up to the breach
      • Obstruction of justice

REASONABLE EXCUSE

Currently the Category 1 offence pursuant to s 31(2) requires the prosecution to prove beyond reasonable doubt that the PCBU had no ‘reasonable excuse’ to expose a worker to the risk of death, serious injury or illness. We think that runs against the natural course of justice. 

If in a position to do so – SA-BEST will do the following:

  • We would seek to amend s 32(2) to reverse the onus of proof to the party contending that it had a reasonable excuse to place a worker at risk. 
  • This would then reflect a defence to the charge requiring a standard of proof of beyond reasonable doubt.

SENTENCING GUIDELINES

Current sentencing practices under the Criminal Law (Sentencing) Act 1988 have delivered inconsistent and frustrating outcomes in dealing with corporate offenders under work health and safety laws. 

If in a position to do so – SA-BEST will do the following:

  • Consult with relevant stakeholders to develop a structured and definitive sentencing guidelines developed around the UK model with a view to progressing transparency and consistency of the penalties handed down in WHS offences.
    • We would include payment plans of up to 10 years under the guidelines as a central feature to ensure financial hardship claims are carefully evaluated; paying careful attention to the balance sheet that discloses the audited accounts from the previous 3 years and that reflect:
      • Turnover – and profit before tax
      • Directors remuneration
      • Loan accounts
      • Pension provisions
  • Guidelines do not remove the court’s ability to use its discretion where the guidelines would be contrary to the interests of justice, but they will require clear reasoning why the guidelines have been deviated from.

[1] Creative Commons, Comparative Performance Monitoring Report - Part 2 Work Health and Safety Compliance and Enforcement Activities, SafeWork Australia, (2017)

[2] From Austlii and SafeWork SA website data: https://www.safework.sa.gov.au/show_page.jsp?id=2463

[3] The Hon TF Bathurst (Chief Justice of New South Wales), 'Insurance Law: A View from the Bench' (Speech delivered at the Australian Insurance Lawyers Association National Conference, Sydney, 19 September 2013)

[4] Hillman v Ferro Con (SA) Pty Ltd (in liquidation) and Anor [2013] SAIRC 22 (27 June 2013)

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