Earlier in the week New South Wales Minister for Commerce, John Della Bosca, released the Bill proposing significant increases in monetary penalties and imprisonment for contravention of the Occupational Health and Safety Act 2000 (NSW) involving workplace fatalities.
The draft is a product of recommendations made by Workcover NSW in June this year, following submissions from a panel Della Bosca appointed in November 2003. Several events culminated in the commissioning of the panel, including the death of 16 year old Joel Exner, killed on a building site in October 2003, which galvanised a union push to introduce industrial manslaughter legislation.
The Bill provides for penalties roughly double currently available. At the moment an individual found guilty of a first offence would have to pay A$55,000. This increases to $110,000. There is also provision for up to two years imprisonment for first time offenders and five years imprisonment for subsequent offenders.
The possibility of imprisonment for first time offenders is a specific recommendation of the panel Della Bosca said.
The bill also includes an amendment to the OHS act to provide for five aggravating factors when sentencing. These are:
feasible measures reasonably available to prevent or mitigate risk
the risk from the breach
reckless or negligent conduct
financial advantage gained
Della Bosca said listing these factors in the Act will ensure the courts recognise the unique features of occupational health and safety laws when sentencing offenders.
“They will promote greater transparency and accountability in the sentencing process,” he said.
Despite substantial union pressure industrial manslaughter laws have been unanimously ruled out on the advice of the panel on the basis that the Crimes Act would shield rogue employees.
“The panel carefully explained that such legislation would be unhelpful; a retrograde step; unlikely to be utilised to any significant degree; and tokenistic in nature. The panel's advice was that it would not improve the occupational health and safety of workers in New South Wales,” he said.
At the time of going to press, CFMEU officials contacted by International Longwall News had not yet seen the Draft Bill and were unable to comment but it is unlikely the union will be happy about the outcome related to industrial manslaughter.
Della Bosca was at pains to point out hard-working, responsible employers had nothing to fear from this Bill.
“This Bill is aimed at a minority – the rogues whose indifference to health and safety results in death,” he said.
A bulletin produced by legal firm Sparke Helmore said the proposed legislation came as no great surprise given the increased scrutiny given to workplace fatalities in New South Wales since the joint protocol introduced between WorkCover, Police, Coroner and other agencies in January this year.
“In the event that these changes become effective, as is now likely, corporations and those involved in their management will need to be even more vigilant with respect to their compliance with the OHS Act,” Sparke Helmore said.
“Managers and directors will also need to carefully review their OHS policies, procedures and their implementation in order to protect themselves from liability and if convicted, to protect themselves from these ‘aggravating factors’ and increased penalties.”
Interested parties have until 12 November 2004 to comment on the Draft Bill.