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New Offence for Workplace Fatalities in NSW

This article was published in Safety Watch E-Newsletter, July 2005

The Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 came into effect on 15 June 2005. The Act creates a new offence under the Occupational Health and Safety Act 2000 (NSW) (the OHS Act) which deals with workplace fatalities.

The Act provides, that any person or organisation which has a duty under the OHS Act, whose reckless conduct (whether by act or omission), causes the death (or injury leading to the death) of a person in the workplace, may be found guilty of an offence.

Whilst “recklessness” is not defined in the legislation, WorkCover NSW has provided some guidance in its Information Sheet, indicating that it means “a lack of concern for the consequences of an action”.

The effect of the new offence is that:

• an employer;
• a self-employed person;
• a controller of plant, substances or premises;
• a designer, manufacturer or supplier of plant or substances; or
• an employee,

who acts in a way which is, reckless about the danger of death or serious injury to a person or people in the workplace, (or whose failure to act is reckless about the danger of death or serious injury to a person or people in the workplace), and their action, or inaction, causes the death, or injury leading to death of another in the workplace, may be found guilty of the offence.

Available Defences

The existing ‘defences’ contained in section 28 of the OHS Act will continue to apply. However, a new defence of “reasonable excuse” will also be available. This will require the defendant to prove that there was a reasonable excuse for their act(s) or omission(s) to avoid liability.

Hefty Penalties

Hefty penalties can be imposed on those found guilty of the new offence. In the case of a company, the maximum penalty is $1.65 million and for an individual, up to $165,000 and/or 5 years jail There is no leniency for first time offenders, as with other OHS breaches.

Prosecution Process

Only WorkCover or someone who has the written consent of the relevant government Minister, will be able to prosecute for breach of the new offence. This will mean unions will not be able to institute prosecutions for breach of the new offence without ministerial consent, which they currently can do for other OHS offences.

All prosecutions for the new offence will be heard in the Industrial Relations Commission of NSW in Court Session. No cases will be heard by an industrial magistrate. If an individual is convicted and sentenced to a term of imprisonment, they will have a right of appeal to the Court of Criminal Appeal, a right not currently available in relation other OHS prosecutions. In contrast, WorkCover will not be able to appeal against an acquittal.

Liability of directors and managers

Currently, if a company commits a breach of its duties under the OHS Act, directors and those involved in the management of a corporation are deemed to have also committed the same offence,- unless they can prove, they were not in a position to influence the conduct of the corporation, or they used all due diligence to prevent the breach by the company.

In the case of the new workplace deaths offence, directors and those involved in the management of a corporation, will not be deemed to have committed the new offence simply because the company has committed a breach. However, where the company owes an OHS duty to another person, its directors and those involved in the management of the company will be deemed to also owe that duty. This means that a director or manager may still be prosecuted for the new offence, if the director’s or manager’s own reckless act(s) or omission(s) substantially contributes to a death in the workplace.

HR Tip - Additional Caution Required

The introduction of this new offence casts even greater responsibilities on employers (whether they be individuals or companies), their directors and other persons involved in the management of the corporation, to ensure that risks in their workplaces are eliminated if possible, or at least controlled. A failure to do so, which results in a workplace fatality, may result in personal liability, heavy fines and a term of imprisonment. It is therefore extremely important that all employers comply with their obligations under the OHS Act. If you are in doubt as to what to do to meet your OHS obligations, you should get advice as soon as possible. Don’t wait for a workplace injury or death to occur, before you take action.

For further information on the matters discussed in this article or on your OHS obligations generally, please contact Richard Taylor, Senior Associate on (02) 94587022 or John Stanton, Partner on (02) 9458 7555.