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Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 82, 14 June 2005
A recent decision of the Industrial Relations Commission of NSW serves as a reminder that unions, in addition to being able to prosecute employers for breach of occupational health and safety legislation, may also be entitled to a share in any penalty awarded against an employer.
In Geoff Derrick v ANZ Group Limited, Justice Boland found ANZ guilty of breaching the NSW Occupational Health & Safety Act 2000 (the OH&S Act) following four robberies at the bank’s Peakhurst branch between 2002 and 2003. The bank was fined $175,000 and ordered to pay the union’s legal costs in prosecuting the matter.
Immediately after the Commission handed down its decision imposing the $175,000 penalty the union made an application for a moiety (one half of the penalty).
In support of its claim for up to one half of the penalty, the union undertook to apply two thirds of what it received from the penalty to fulfilling the union’s OH&S objectives. The remaining one third was to be paid to members of the union who were victims of the bank robberies at the Peakhurst branch.
Justice Boland ultimately exercised his discretion in favour of the union, awarding the union one half of the $175,000 penalty.
In reaching his decision, Justice Boland gave significant consideration to whether there was any rule requiring a union to indicate the purpose for which it might use money obtained from a share of a penalty, before the Commission could exercise its discretion and award a union a share of a penalty. Justice Boland found that no such rule existed.
Accordingly, it would be open for the Commission to award a union a share of any penalty imposed against an employer in OH&S proceedings prosecuted by a union, even if the union is to use its share of the penalty for matters unrelated to OH&S.
HR Tips
Unions are able to prosecute breaches of the OH&S Act. As the above demonstrates, there may be a financial incentive for unions in prosecuting such matters.
Where a union alleges
a breach of the OH&S Act by an employer, it would be prudent
for the employer to properly investigate the alleged breach
and, if necessary, seek legal advice. Failure by an employer
to appropriately deal with such allegations may provide incentive
for the union to commence a prosecution.
