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Client Update: Workplace Relations – 20 June 2005

New OHS law in New South Wales and Victoria

In brief: A new law introducing an offence for a death in the workplace came into force last week in New South Wales. The Bill passed rapidly through Parliament and will impact on directors and officers. Victoria will also have significant occupational health and safety changes in force within the next few weeks. Lawyer Ric Morgan reports on these developments.

NSW workplace fatalities

The New South Wales Parliament passed the new Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 (Workplace Deaths Act) on 10 June 2005. The Bill was introduced into Parliament on 27 May 2005, progressing rapidly to become law with Royal Assent on Wednesday, 15 June 2005. The Act amends the Occupational Health and Safety Act 2000 (NSW) (NSW OHS Act) and creates a new offence for when there has been a death in the workplace.

The new offence is committed where a dutyholder under the NSW OHS Act has been reckless in relation to the safety of a person to whom they owe a duty to provide a safe and healthy workplace and where their conduct causes the death of the person. It is similar to the reckless endangerment offence recently introduced in Victoria. However, the NSW offence applies only where a fatality has occurred. The maximum penalties for first and subsequent offences are $1.65 million in the case of a corporation, and $165,000 and five years' imprisonment for an individual.

The amendments do not have the same problems that prompted criticism of NSW's earlier proposals for an industrial manslaughter offence. There is no reversed onus of proof. A new defence has been introduced that allows a person to prove that there was a reasonable excuse for the conduct leading to the fatality. Unions do not have the right to bring a prosecution in relation to the new offence and WorkCover has no right to appeal against an acquittal. Where a person has been convicted of the new offence and sentenced to a term of imprisonment, the changes introduce a right of appeal to the Court of Criminal Appeal.

The amendments, by modifying the deeming provisions in the NSW OHS Act, also mitigate the concerns of directors and managers of corporations about being deemed guilty. Directors and officers are not deemed guilty of the new offence where their corporations are guilty. However, where a corporation owes a duty, the directors and managers of that corporation are deemed also to owe a duty for the purposes of the new offence. This has the effect of imposing a positive duty on directors and managers to ensure that their own actions or omissions do not contribute to the cause of a serious injury or death.

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New Victorian Act tougher on directors and officers

Victoria's new Occupational Health and Safety Act 2004 (Victorian OHS Act) comes into force on 1 July 2005. This new Act includes changes that impact on directors and officers, including:

  • Maximum fines for each offence increased to $920,250 (corporations) and $184,050 (individuals).
  • Innovative penalty options: adverse publicity orders, enforceable undertakings and orders to undertake occupational health and safety improvement projects.
  • A new offence, where reckless endangerment of persons at a workplace is punishable by five years' imprisonment.
  • The 'state of mind' can be imputed to a corporation by showing that an officer or agent who engaged in the conduct had the relevant state of mind.
  • Officers can be deemed guilty of an offence where the corporation is guilty of an offence.

When combined, these mean that, where a corporation is guilty of a reckless endangerment offence from the imputed state of mind of an officer or agent, a director or officer could be deemed to be guilty of the reckless endangerment offence and subject to imprisonment.

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