OHS SeminarDO THE TIME

– avoid the crime!

OHS SeminarDO THE TIME

– avoid the crime!

Miles Crawley

8 June 2007

Introduction

Occupational Health, Safety & Welfare Act 1986

OHS & W (Penalties) Amendment Bill 2006

Duties on employers

Section 19, OHS & W Act

19. (1) An employer shall, in respect of each employee …. ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health

• To be in breach of that duty, it is not necessary that anyone infact suffers injury. It is enough if an employee is exposed to the risk of injury

• By its terms, the section imposes a criminal penalty for what amounts to no more than common law negligence

Duties on employers

Section 22, OHS & W Act

• (2) An employer or a self –employed person must take reasonable care to avoid adversely affecting the health or safety of any other person (not being an employee)

Duties on employers

Section 23, OHS & W Act

• an occupiers liability provision.

Regulations made under the OHS & W Act

• Just the index to the regulations comprises some 12 pages

Duties on Directors and Officers

Section 61 responsible officers.

– CEO, or Senior Executive Officer or an Officer of the Body Corporate.

– Undertake course of training recognised or approved by the Advisory Council.

Duties on Directors and Officers

• charged with the duty to take reasonable steps to ensure compliance by the body corporate of its obligations under the Act. Should the responsible officer fail to do so, then such officer is guilty of an offence.

• If no responsible officer has been appointed, each officer of the body corporate will be taken to be a responsible officer

• In the proposed amendments, new offences will be created involving officers of the body corporate for actions they take, or fail to take, that creates or aggravates a risk of injury (proposed section 59C)

In the event of an investigation

obligation to answer questions

Section 38

• The only exceptions to that are where the information is privileged on the ground of legal professional privilege, or the information is relevant to proceedings that have been commenced under the Act (section 38(3)).

Section 54(1).

• The only exceptions – same as under section 38

– information that would tend to incriminate the person who has the information of an offence; or

– personal information regarding the health of a person who does not consent to the disclosure of the information.

In the event of an investigation

Is a witness obliged to sign a statement obtained from them?

• no legal obligation

Can a witness refuse consent to the interview being taped?

• no basis for a refusal

Is the employer or a lawyer representing the employer entitled to be present when persons in the workplace are being interviewed?

• There is nothing in the Act which enables an employer to insist upon that, but as with many things in life, there is no harm in asking.

Who may initiate a prosecution

• the Minister or inspector.

• However, if neither a Minister or Inspector has initiated a prosecution within 1 year of the date of the offence, if an employee has suffered an injury as a result of the Act or omission which is alleged to constitute such an offence, the employee may initiate a prosecution

Penalties

• first offence $100,000.00.

• second or subsequent offence $200,000.00.

• responsible officer $10,000.00 unless the court is satisfied that the failure of the responsible officer has contributed to the commission of an offence by the body corporate. In those circumstances, the maximum fine is the same as is prescribed for the offence committed by the body corporate.

Penalties

• If an offence in breach of section 19, 22 or 23 of the Act is committed by a person

– knowingly

– recklessly indifferent

double the penalty or imprisonment for a term not exceeding 5 years or both.

OHS Management Systems

• Is there a system?

• Is it working?

• Is it effective?

OHS Management Systems

Implementation

• Structure and Responsibility

• Training and Competency

• Consultation, Communication and Reporting

• Documentation

• Document and Data Control

• Hazard Identification, Risk Assessment and Control of Risk

Conclusion

Employers must be alert to their safety obligations. Employers should undertake safety audits and risk assessments. Failure to do so adequately could prove to be very expensive – not just in terms of money, but also in terms of time, injury and even adverse publicity.