Published in the June 2011 Australian Longwall Magazine

According to McCullough Robertson partner Jeremy Kennedy, the changes may even reverse a recent trend which discouraged miners from assuming statutory or management positions due to the onerous nature of personal liabilities under previous legislation.

The federal government’s push for national OHS laws over the past couple of years is advancing towards the planned January 1, 2012, implementation deadline.

The NSW, Queensland and South Australian governments introduced the federal government-engineered Work Health and Safety Bill into their parliaments in May.

Yet the end of the Labor party’s reign in NSW led to some unexpected developments as the O’Farrell government also introduced amendments to the state’s Occupational Health and Safety Act 2000, which will apply immediately and are not dependant upon the passing of the model bill.

Kennedy says the national WHS model legislation and the immediate amendments to the existing act are a welcome and long overdue regulatory overhaul for what some lawyers perceive as Australia’s “prosecution state”.

Under the WHS bill, an employer will now be known as a person conducting a business or undertaking, officially launching the PCBU acronym to Australian workplaces.

The decade-long existing OHS regime in NSW placed an absolute liability on employers to ensure the health, safety and welfare of their workers, but PCBUs must meet these standards at a lesser standard, so far as is “reasonably practicable”.

“Before, they were required to ensure [health and safety], so it was a strict liability and that of course led to an almost 100% strike rate with prosecutions,” Kennedy said.

“The change will give employers, PCBUs, officers and individuals who were prosecuted at least an opportunity to raise a proper defence.”

This new legal test was also coupled with the removal of reverse onus of defence provisions as part of the O’Farrell government’s amendments, bringing the state in line with the innocent-until-proven-guilty approach to other criminal prosecutions.

“The prosecution must prove beyond a reasonable doubt that the defendant has breached the act, so that is another positive in the coal industry generally and in New South Wales,” Kennedy said.

He said a third major change came as “a bit of a surprise” as it was outside the modelled national OHS legislation.

The O’Farrell government amendments included changing the jurisdiction of the state’s WHS act, stripping it away from the NSW Industrial Relations Commission to the criminal court system. In late amendments made to the bill in the upper house, a minor role has been given back to the Commission to share jurisdiction with the Local Court on minor safety matters and for appeals from the Local Court.

The dominant jurisdiction will lie with the criminal court system.

Kennedy supported the criminal court change, as he noted that category one offences, such as where a person was reckless to a risk of serious injury or death, should be dealt with by proper criminal procedures.

“This is how the system should have been for the last 10 years because these are criminal offences,” he said.

“What we have had is the Industrial Relations Commission, which is an industrial tribunal – not a criminal court – hearing criminal cases and that has also led to a very high conviction rate.”

Kennedy discussed the four key matters to determine whether or not a defendant took reasonably practicable measures under the national WHS model.

The first consideration was the seriousness of the risk or degree of harm it presented. Another consideration was what the PCBU or individual ought to have known about the risk, including the ways to eliminate it.

The third matter was the availability or suitability of items or methods to minimise the risk.

“That involves the consideration of cost and whether the cost of eliminating that is grossly disproportionate to the risk,” Kennedy further clarified.

He said the last matter was the likelihood or probability of a certain event occurring.

“They are the matters the court will take into account on considering whether or not a PCBU or an individual officer has complied with their obligation.”

Ultimately these changes to jurisdiction provisions follow the controversial Kirk versus Workcover NSW case last year.

Stemming from a farm manager who died after rolling his all terrain vehicle while driving down a steep hill, when he could have used an established road, the High Court found that the owner of the farm was not responsible and criticised the procedures of NSW safety prosecutions.

Kennedy explained how the safety regulatory changes could benefit NSW-based coal companies.

“If you have policies and procedures in place and your employees are trained and supervised and then they go off on a frolic of their own and commit an act outside of those policies or procedures, you won’t have situations where you can still be prosecuted.”

The key regulatory change shared by the O’Farrell government’s amendments and the national WHS model will alter the potential safety liabilities key coal company staff will be subjected to.

However, Kennedy said he was disappointed by late political compromises in the upper house of the NSW Parliament which saw the proposal to remove the union right to launch safety prosecutions against employers softened. Such prosecutions will be allowed, but only in strict circumstances and the unions will lose the right to receive half the fine.

NSW will be the only state to allow such union prosecutions. The WHS bill created the new position of officer, as defined under the federal Corporations Act 2001, to be an individual on the line for possible safety offences.

“There is a negative there and that is that the officer has to exercise all due diligence to ensure that the PCBU complies with its obligations under the act,” Kennedy said.

But this is an improvement for NSW, especially after the Gretley mine disaster in 1996 which triggered a series of prosecutions against individuals.

“Since then in New South Wales in pretty much 50 per cent of the cases, not only is the company prosecuted but individuals concerned in the management are prosecuted,” Kennedy said.

“That is another key issue for the coal mining industry in New South Wales – the industry has found it difficult to fill statutory roles, such as mine managers, undermanagers and electrical engineers.”

Removing possible prosecution clouds from these positions should encourage more people step into those statutory roles.