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Business baulks at mooted OSH change

WESTERN Australia’s business community is growing anxious as the State Government prepares to hand down its draft changes to the Occupational Safety and Health Act.

Already battling with the Government over its proposed changes to Workers’ Compensation laws, which will go to parliament within weeks, groups such as the Chamber of Commerce and Industry are concerned about the impact of some of the “heavy handed” proposals on business.

From the proposals outlined by the Government last year, industry groups and experts in the field foresee less cooperation with government over workplace safety issues, and suggest lawyers are likely to be the biggest winners from the mooted changes.

The Chamber of Commerce and Industry (CCI) and the Chamber of Minerals and Energy (CME) say they are not convinced that WA needs dramatic changes – which include stronger laws and tougher penalties (including imprisonment), as well as more inspectors.

CCI director of health, safety and compensation, Anne Bellamy, said the laws are not a response to a growing problem.

“Data indicates that the number of workplace accidents in WA are falling, and have been for a number of years,” Ms Bellamy said.

Some organisations even argue that, rather than seeking to encourage employers to get tougher on workplace safety, certain “heavy-handed” changes will only anger employers, forcing them to close ranks and more vigorously defend prosecutions.

Detailing the reform in August last year, Consumer and Employment Protection Minister John Kobelke said it was unsatisfactory that, on average, a worker in WA was injured and forced to take time off every 25 minutes.

Mr Kobelke said the reforms would give effect to most of the 107 recommendations made in the Laing Report – a mandatory review of WA’s Occupational Safety and Health Act – tabled in 2002.

In broad terms, the Government’s reforms will increase the penalties for employers who fail to provide a safe workplace and will strengthen the enforcement and maintenance of safe working conditions.

The changes aim to align WA’s OSH laws with other Australian States, as well as act as a deterrent to bosses or companies that fail to provide safe working conditions.

The WA trade union movement supports the Government’s move, arguing that WA’s current OSH laws are insufficient.

Unions WA secretary Stephanie Mayman said OSH laws were important because they ensured the lives and operation of Australian workplaces.

Ms Mayman congratulated the Government on its effort to provide an additional 20 health and safety inspectors during the next three years but said more needed to be done.

“What the laws are currently saying in the State of Western Australia, very simply, is that a worker’s life is seemingly worthless.” Ms Mayman said.

“The trade union movement supports substantial enforcement measures under the act to ensure that those people who inappropriately breach OS&H laws pay the penalty.”

But the CCI and the CME are saying that, while they support the mandatory, ongoing review of WA’s OSH laws, as well as many of the Government’s changes developed from the latest review, changes may anger employers rather than encourage them to tighten workplace safety.

In particular, they say the new penalty structure, which increases penalties and includes a possible imprisonment option for bosses slack on safety, is going to be a sticking point when the consultation draft goes out in a few months.

The Government says the new penalty structure will provide increased penalties for subsequent offences, higher penalties for corporations, and new offences where “gross negligence” is proved in cases involving serious harm or death.

A major change will be the introduction of the option of imprisonment, for persons found guilty of a general duty of care breach involving “gross negligence” causing serious harm or death.

A corporation convicted of a similar charge will face a maximum penalty of $500,000 for a first offence, two-and-a-half times the current maximum for any offence under the OSH Act.

Ms Bellamy said increasing penalties was a heavy-handed approach. She also said by increasing penalties the Government was following the lead of other States, despite a lack of sufficient evidence that the increased penalty system was working.

“There is an argument around the country to increase fines and I guess we need to be saying: ‘Because everyone else is doing it why should we?’”

Ms Bellamy said there was not enough encouragement and support for business to implement strategies that made for safer workplaces.

“I have never thought that a heavy-handed approach is effective in encouraging employers,” she said.

Chamber of Minerals and Energy executive officer occupational safety and health, Nicole Roocke, said the chamber also had serious concerns with some of the recommendations, particularly the increased penalties.

“We don’t feel it [the new penalty structure] is going to support improving OHS in the mining industry – it is potentially going to have a more adverse effect,” she said.

“Currently the mining industry has quite an open policy, that is, when there is a serious incident, it is openly investigated.”

Ms Roocke said the new penalty structure, specifically the imprisonment of employers, may cause mining companies to close ranks around the investigation process.

“There is the potential they may want to get lawyers in to do it so that it is covered by legal privilege,” she said.

Ms Roocke said plans to specifically legislate for the role of the statutory Mines Occupational Safety and  Health Advisory Board (MOSHAB) under OHS legislation – with its current representation to the Minister for Industry and Resources – had the potential to benefit safety in the mining industry.

Perth barrister Paul Mendelow said the increased penalties could serve their purpose – a deterrent effect that forced employers to install “demonstrable” safety systems.

“Provided the courts apply commonsense notions and they are also in touch with the practicalities of commercial life and construction sites, then if it can save lives and it has got that deterrent effect, then that is an important step,” Mr Mendelow said.

A specialist in the defence of OHS prosecutions, Mr Mendelow said the increase in penalties could mean prosecutions become more vigorously defended.

In the past, he said, with average fines between $15,000 and $35,000, and a maximum fine of $200,000, employers often took a risk-management approach.

“Employers often then make a commercial decision and, even if it is a borderline case, perhaps it’s better not to defend it . . . so [they] may as well just take the rap,” Mr Mendelow said.

He said new laws threatening higher payouts may mean that employers being prosecuted would feel much more inclined to defend themselves.

 

“Employers often then make a commercial decision and, even if it is a borderline case, perhaps it’s better not to defend it . . . so [they] may as well just take the rap.”

- Paul  Mendelow

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