Amendments Proposed to OHS Act may result in less prosecutions

Amendments Proposed to OHS Act may result in less prosecutions

02/08/2006

Proposed amendments to the OHS Act 2000, as detailed in the draft Occupational Health and Safety Bill 2006 may result in an overall reduction in the number of OHS prosecutions; this according to Lawyers at a top tier law firm.

If these amendments are passed, some of the amendments will come into effect upon assent, and others on 1 October.

Freehills partner Miles Bastick, senior associate Alicia Ash and solicitor Shivchand Jhinku have produced a detailed paper that outlines the most significant proposed amendments and their likely implications for employers.

"Common sense approach" to managing OHS risks

According to the paper, one of the key changes proposed in the draft Bill is a shift from the current "absolute" nature of duty-holders' obligations to ensure safety, to instead require that duties and obligations under the Act be met only "so far as is reasonably practicable".

The Freehills lawyers say: "Under the current legislation, employers are required to 'ensure' that their employees and others affected by their undertakings are free from risks to their health and safety. The courts have interpreted this as an obligation to 'guarantee' safety. The proposed amendments will require that employers 'ensure, so far as is reasonably practicable' their employees and others affected by their operations are free from risks to their health and safety."

The Freehills lawyers say the proposed amendments to the general duties may lead to an overall reduction in alleged breaches of the OHS Act - partly because of the shift in the onus of proof resulting from the repeal of the current defence provision ( s28 of the OHS Act) and the "reasonably practicable" qualification, and partly due to the introduction of an alternative avenue for dealing with alleged breaches of the legislation via the use of enforceable undertakings.

They say that currently, the onus is on a defendant to prove, in its defence, that it has taken all reasonably practicable steps to ensure it discharged its OHS obligations. "It has been very difficult for duty holders to discharge the burden of proof placed on them. This is because courts have historically approached the question of whether it was reasonably practicable to comply with the OHS Act by balancing the risk of injury (its likelihood and severity) against the cost (in terms of money, production ad effort) of preventing that risk. Courts have held that it is only in circumstances where there is a gross disproportion between the risk and the cost of preventing the risk that the defence will be successful."

The lawyers say the inclusion of the "so far as reasonably practicable" qualification into the offence provisions means it will now be necessary for a prosecutor, rather than the defendant, to prove beyond reasonable doubt that the defendant failed to do all that was reasonably practicable to ensure safety.

"This change in onus may result in a lesser number of prosecutions as prosecutors will need to be satisfied before instigating a prosecution that they can prove each element of the offence, including the steps which were reasonably practicable for the defendant to have taken.

"The introduction of enforceable undertakings as an alternative to prosecution may also assist in creating an overall reduction in prosecutions."

Additional right of entry could result in misuse of OHS by unions

The Freehills lawyers say the new right of entry provided for in the draft Bill - to discuss matters relating to OHS with employees during work breaks (in addition to the existing right to enter to investigate suspected OHS breaches) - could potentially be used by unions to achieve industrial objectives.

"The additional right of entry provision may give rise to difficulties should the right of entry be abused or used for purposes other than safety, such as industrial relations or union membership recruitment. The restriction on other union rights of entry introduced by the Work Choices legislation may also encourage unions to increasingly rely on safety-related rights of entry as a means of gaining access to an employer's premises.

"While there are some safeguards proposed in the Draft Bill, the extent to which these will be effective to avoid abuse of the right will no doubt be tested."

The paper, Proposed amendments to New South Wales OHS legislation - lessening the burden of compliance, also discusses other proposed amendments including:

• the proposed amendments to section 26 of the OHS Act and those persons who may be deemed to be liable for breaches of a corporation;
• the proposed new power of the IRC to resolve right of entry disputes;
• the articulation of WorkCover's OHS prevention, advisory, assistance and education functions;
• the introduction of prosecution alternatives (enforceable undertakings);
• the rights and obligations of employees - including the express obligation for employees to take care for their own safety; and
• the role and authority of OHS committees and representatives.

Source: OHS Alert web updates news service 2nd August 2006