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VIC:  Managers face steeper OH&S penalties from 1 July

Major changes to Victoria’s occupational health and safety laws which come into force on 1 July 2005 impose additional obligations on directors and senior managers while significantly increasing the penalties they will face for breaching those obligations.

Historically, the Victorian WorkCover Authority has rarely prosecuted individual company officers whose companies have been charged with OH&S offences. The previous legislation allowed such prosecutions in only very limited circumstances where an individual’s wilful neglect caused an offence which the company had been found to have committed.

Given the recent push for industrial manslaughter legislation in Victoria and other States, it was always on the cards that the law would be changed.

The new Act provides that company officers may now be personally liable for a health and safety offence where they fail to take reasonable care and the offence by their company is attributable to them. Where found guilty, individuals can now face a $184,050 penalty, up from the previous maximum of $51,125.

Individuals may also face jail terms of up to five years if their conduct is found to have recklessly endangered a person at a workplace, particularly where a death has occurred. This new duty of reckless endangerment falls short of recent calls to introduce industrial manslaughter laws but goes some way towards addressing community concerns that people responsible for safety breaches have often avoided punishment. WorkCover is likely to use the new law to ensure that more individuals are prosecuted from now on.

The new laws also respond to employer concerns by allowing a new internal mechanism within the Workcover Authority to review decisions by inspectors to issue improvement notices which require workplace premises to be made safer. Employers can now also apply to VCAT to review such decisions.

However, companies now also have to contend with increased union involvement in their workplaces, with the new law allowing authorised union representatives to enter premises where they reasonably suspect a breach of the legislation has occurred or is occurring. Unions are likely to seize this opportunity as a way of sidestepping the provisions in the Howard Government’s proposed new workplace regime which aim to restrict the rights union officials would have to enter workplaces.