EMPLOYERS and companies could be in for a raw deal as the State Government prepares to beef-up its Occupational Safety and Health Act, according to some Perth lawyers.
EMPLOYERS and companies could be in for a raw deal as the State Government prepares to beef-up its Occupational Safety and Health Act, according to some Perth lawyers.
They are concerned that, while employers will be forced to take more responsibility for safety in the workplace, employees will not.
Currently, companies that cause death by failing to provide a safe working environment can receive a penalty of up to $200,000.
However last year, following the death of a 20-year-old female farm worker in Brookton, the Government said it was drafting tougher Occupational Safety and Health (OS&H) legislation – in line with recommendations from the 2002 Laing Report into occupational safety and health.
Although the deceased farm worker’s employers, Elders Hycube, received a record fine ($75,000) at the time, Consumer and Employment Protection Minister John Kobelke said WA’s maximum fines would increase to $625,000 – the second highest in Australia.
And for the first time imprisonment would be introduced as a sentencing option in cases involving serious harm or death.
But while lawyers say updating the OH&S Act is necessary, they are concerned that, despite the indicated increases in employer’s penalties, there is no recognition of a contributing negligence by an employee or employees.
Although Section 20 of the act requires employees to take reasonable care to ensure their own or other’s safety and health at work, Jackson Macdonald occupational safety and health partner Maria Saraceni said there currently was no recognition that sometimes the employee did the wrong thing.
“If the employee does the wrong thing – fails to wear the safety gear they have been provided and consequently dies – the employer, potentially, is still up for charges,” she said.
Ms Saraceni said the law should recognise a reduction in an employer’s liability if there was found to be some contributory negligence on behalf of the employee.
“It’s all a question of risk sharing and it’s all going one way – who has the deepest pockets,” she said.
“And then there is the question whether employers will be able to buy insurance to cover against this sought of thing.”
Minter Ellison HR and IR group partner Bruno Di Girolami said the increased obligations were a step in the national interest in terms of safety in the workplace.
However, he said there was a case for increased employee obligations, particularly if employers now risked jail.
The Australian Capital Territory recently brought in industrial manslaughter laws – through amending its Crimes Act rather than its OS&H Act – under which bosses could go to jail for up to 25 years if they are found guilty of recklessly or negligently causing the death of an employee.
Although WA has similar laws under its own Crimes Act it is understood they have not been invoked.
“It is important that safety in the workplace is balanced,” Mr Di Girolami said. “So far its only been going one way – the penalties and obligations have been increasing on the employer.”
While a spokesman for Consumer and Employment Protection Minister John Kobelke would not discuss the specifics of the proposed reforms to the OS&H Act, he said they were designed to bring WA more into line with other Australian States.