The Work Health and Safety Act 2020 came into force this week. Some key points are:
- What was previously called “gross negligence” is now called “industrial manslaughter”, if it results in death. While the elements which a prosecutor must prove are much the same as in the previous legislation – see s.30A below – the penalties have increased, including gaol terms of up to 20 years, fines for individual up to $5 million for directors, secretaries, other key officers in businesses, fines of up to $10 million for a bodies corporate.
- It will be administratively easier to prosecute, which is likely to result in more prosecutions. More inspectors and lawyers have been engaged by the Government.
- Included are businesses run as:
- incorporated and unincorporated associations;
- partnerships, with each partner being liable;
- sole traders; and
- COMMERCIAL STRATA COMPANIES and their Councillors 🙁
- Exempt are:
- Ministers of the Crown;
- Local Government Councillors;
- Residential Strata Companies that are responsible for any common areas which are used only for residential purposes, but NOT if the Strata Company has paid employees;
- purely volunteer associations – i.e. if NO ONE is employed in a paid capacity; and
- any other categories specified in the regulations, but the regulations are yet to be enacted.
- Insurance against fines is banned, but not defence cost insurance.
The new regime covers:
- all the various entities that might be engaged at a worksite, whether or not they are an actual employer – principal companies and other entities, contractors, sub-contractors, labour hire companies; and
- all workers, whether they are employees, employees engaged by labour hire companies, individual who are contractors and subcontractors, “gig economy” workers, apprentices or trainees, work experience students or volunteers.
The responsibilities of directors, secretaries and other key officers in control of businesses have been clarified. All of them must positively engage in due diligence to identify and eliminate risks, and will be in trouble if they know of the facts that give rise to an unsafe workplace, though these are existing obligations.
The Old regime was governed by 3 groups of legislation covering workplaces generally, mine sites and the petroleum industry and largely covered employers only. These 3 groups are now covered by the one Act, but Electricity and Rail Industries are still largely covered separately.
It is trite to state that, to avoid liability under the new regime, Executive and Non-Executive Directors, Councillors of Commercial Strata Companies and others in positions of substantial control within businesses MUST ASSESS AND IDENTIFY RISKS AND TAKE STEPS TO ENSURE THAT WORKPLACE ACCIDENTS DO NOT OCCUR!
30A. Industrial manslaughter — crime
(1) A person commits a crime (industrial manslaughter) if —
(a) the person has a health and safety duty as a person conducting a business or undertaking; and
(b) the person engages in conduct that causes the death of an individual; and
(c) the conduct constitutes a failure to comply with the person’s health and safety duty; and
(d) the person engages in the conduct —
(i) knowing that the conduct is likely to cause the death of, or serious harm to, an individual; and
(ii) in disregard of that likelihood.
Penalty for this subsection:
(a) for an individual, imprisonment for 20 years and a fine of $5 000 000;
(b) for a body corporate, a fine of $10 000 000.
(2) A person charged with a crime under subsection (1) may be convicted of a Category 1 offence, a Category 2 offence or a Category 3 offence.
(3) An officer of a person (the PCBU) commits a crime (industrial manslaughter) if —
(a) the PCBU has a health and safety duty as a person conducting a business or undertaking; and
(b) the PCBU engages in conduct that causes the death of an individual; and
(c) the PCBU’s conduct constitutes a failure to comply with the PCBU’s health and safety duty; and
(d) the PCBU’s conduct —
(i) is attributable to any neglect on the part of the officer; or
(ii) is engaged in with the officer’s consent or connivance;
(e) the officer engages in the officer’s conduct referred to in paragraph (d)(i) or (ii) —
(i) knowing that the PCBU’s conduct is likely to cause the death of, or serious harm to, an individual; and
(ii) in disregard of that likelihood.
Penalty for this subsection: imprisonment for 20 years and a fine of $5 000 000.
(4) A person charged with a crime under subsection (3) may be convicted of a Category 1 offence, a Category 2 offence or a Category 3 offence.